HomeMy WebLinkAboutres2017-019WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2017 — 129
CLEARANCES
Initial
Date
Date Received in Council O ice
A enda Date
Assign to:
Originator:
Council
4/10/2017
4/18/2017 Natural Re.sourc(
C6uncil
Division Head-
Dept. Head:
Prosecutor:
Purchasin /Bud et:
Executive:
TITLE OF DOCUMENT.•
Resolution GMA counties rely Dept Ecology determine legal water availability
ATTACHMENTS:
Resolution
SEPA review required? ( ) Yes ( ) NO
Should Clerk schedule a hearing ? ( ) Yes ( ) NO
SEPA review completed? ( ) Yes ( ) NO
Requested Date:
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public
hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate.
Be clear in explaining the intent of the action.)
Resolution requesting the state legislature amend the growth management act to carify that counteis can rely on department of ecology guidance for
determining legal water availability.
COMMITTEE ACTION:
COUNCIL ACTION.
4/18/2017: Amended and Forwarded to Council for approval
4/18/2017: Substitute amended and aprpoved 6 -1. Donvan
opposed, Res. 2017 -019
Related County Contract #:
Related File Numbers:
Ordinance or Resolution
Number: Res. 2017 -019
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing
on the County's website at: www.co.whatcom.wa.uslcouncil.
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PROPOSED BY:
INTRODUCTION DATE: APRIL 18, 2017
RESOLUTION NO. 2017 -019
REQUESTING THE STATE LEGISLATURE AMEND THE GROWTH MANAGEMENT ACT
TO CLARIFY THAT COUNTIES CAN RELY ON DEPARTMENT OF ECOLOGY GUIDANCE
FOR DETERMINING LEGAL WATER AVAILABILITY, AND PROVIDE THE
DEPARTMENT OF ECOLOGY ADEQUATE FUNDING TO UPDATE INADEQUATE
INSTREAM FLOW RULES AND, IF NECESSARY, DEVELOP MITIGATION PLANS TO
ADDRESS THE EFFECTS OF PERMIT EXEMPT WELLS
WHEREAS, in 2012, a group of citizens and environmental groups, known as Hirst
et al, challenged the Whatcom County Comprehensive Plan as it related to
residential development and permit- exempt groundwater withdrawals; and
WHEREAS, in 2013, the Growth Management Hearings Board ruled in favor of Hirst
et al; and
WHEREAS, in 2013, Whatcom County appealed this ruling and the State
Department of Ecology, Washington Association of Realtors, and Washington Association of
Counties, and other groups, filed Amicus briefs in support of the County; and
WHEREAS, in 2015, the State Appeals Court overturned the Growth Management
Hearings Board's order and Hirst et al appealed to the State Supreme Court; and
WHEREAS, on October 6th, 2016, the Washington State Supreme Court issued its
decision, now known as the Hirst ruling; and
WHEREAS, in response to the Hirst ruling, the Whatcom County Council adopted
Ordinance 2016 -048, which imposed an emergency 30 -day moratorium on building permits
for properties relying on permit- exempt groundwater withdrawals in areas affected by the
Hirst ruling; and
WHEREAS, on December 6, 2016, the Whatcom County Council, at the request of
the County Executive, adopted Ordinance 2016 -066, a three -month interim ordinance
ending the emergency moratorium and amending Whatcom County Code consistent with the
Hirst ruling, which has placed considerable restrictions on the issuance of building permits
relying on permit- exempt groundwater withdrawals in affected areas of the County; and
WHEREAS, on March 7, 2017, the Whatcom County Council adopted Ordinance
2017 -008, a six -week interim ordinance similar to the first; and
WHEREAS, under the interim ordinances, issuance of building permits relying on
permit- exempt groundwater withdrawals in the affected areas has been limited to those
where the application was submitted prior to the Hirst ruling, and those on lots in
subdivisions where an approved groundwater source has been put to beneficial use, lots
that are part of a shared well agreement approved prior to the Hirst ruling, and lots where
another source of adequate water supply was approved prior to the Hirst ruling; and
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WHEREAS, the County's moratorium and subsequent interim ordinances act as a
temporary bridge to minimize legal risk to the County and property owners until a
permanent solution is reached; and
WHEREAS, Washington State lacks enabling legislation that protects counties and
property owners from legal risk and uncertainty about which actions or decisions would or
would not comply with state law following the Hirst ruling; and
WHEREAS, the County does not wish to take legislative action that could later cause
property owners legal difficulties similar to those encountered by Skagit County property
owners who were issued building permits and were later found to be lacking a legal water
supply by a Supreme Court decision; and
WHEREAS, the County does not wish to take legislative action that places the
County in jeopardy of achieving compliance with the Growth Management Hearings Board
order, or is potentially inconsistent with future State legislative action; and
WHEREAS, hundreds of property owners suddenly are now unable to obtain building
permits for properties they have lawfully subdivided, and even begun infrastructure
improvements on; and
WHEREAS, residential water withdrawals from permit exempt wells represent a tiny
fraction of total water consumption in Whatcom County; and
WHEREAS, while the Hirst ruling impacts 29 counties planning under GMA,
Whatcom County is the only defendant in this case and is therefore uniquely vulnerable and
subject to immediate review for Growth Management Act compliance by the Growth
Management Hearings Board and to potential subsequent state sanctions; and
WHEREAS, half of Whatcom County's budget comes from state or federal grants and
programs; and
WHEREAS, the Whatcom County Council recognizes the precious value of clean and
plentiful potable water; and
WHEREAS, the Whatcom County Council will continue to engage all stakeholders to
collaborate on issues of water quality and water quantity; and
WHEREAS, the Whatcom County Council recognizes the financial and environmental
impacts created by conversion of resource and rural lands to low- density, residential sprawl;
and
WHEREAS, denying citizens the ability to use permit- exempt groundwater
withdrawals to provide for their homes and families is an inappropriate strategy for
preventing sprawl; and
WHEREAS, the County recognizes the need to adopt local regulations consistent
with state law to provide predictability and not put the County, taxpayers, and property
owners at further risk of additional lawsuits; and
WHEREAS, the employees of Whatcom County are working to respond to the Hirst
ruling and authorize appropriate development approvals consistent with the ruling and other
applicable water laws, without jeopardizing the further legal liability and exposure of
Whatcom County government, taxpayers, and property owners; and
N
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2 WHEREAS, the Hirst Decision has shifted to the Counties some of what has been the
3 historical lead responsibilities of the Department of Ecology to determine water rights and
4 legal water availability, set and update instream flow rules, and provide leadership,
5 guidance and support for watershed planning and implementation activities; and
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7 WHEREAS, the County continues to support long -term water resource planning
8 initiatives in coordination with the WRIA 1 Watershed Planning Unit, WRIA 1 Watershed
9 Management Board, the cities, the Water Utility Coordinating Committee (WUCC), the Public
10 Utility District #1 of Whatcom County (PUD), the Lummi Nation, the Birch Bay Water &
11 Sewer District, and the Ag Water Board and the individual watershed improvement districts
12 (WIDs); and
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14 WHEREAS, Whatcom County, along with other stakeholders, initiated cooperative
15 watershed planning under the Watershed Planning Act (RCW 90.82) in 1999 which resulted
16 in the preparation of the WRIA 1 Management Plan in 2005, the WRIA 1 Detailed
17 Implementation Plan in 2007, and the Lower Nooksack Strategy in 2010. This process also
18 included the preparation of numerous technical studies including an instream flow study and
19 the Lower Nooksack Water Budget that provide the technical foundation for water planning.
20 Whatcom County and local tribes and other local partners are furthering that knowledge by
21 developing a groundwater model for the northern portion of the county which will better
22 characterize the interaction between groundwater and surface water and preparing the
23 WRIA 1 Ecosystem Recovery Plan to address water quantity, stream flow, and habitat issues
24 under the Puget Sound Partnership recovery management process; and
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26 WHEREAS, the adopted WRIA 1 Watershed Management Plan includes a well
27 thought out and supported Instream Flow Action Plan in recognition of the deficiencies found
28 in the current Nooksack instream flow rule; and
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30 WHEREAS, funding from the state for support and implementation of adopted
31 watershed management plans, including necessary instream flow updates has ceased; and
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33 WHEREAS, funding for the Department of Ecology to support and participate in
34 Watershed Planning Act activities, water rights processing and enforcement, and instream
35 flow rule updates is woefully insufficient; and
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37 WHEREAS, due to lack of resources the Department of Ecology no longer
38 participates in the WRIA 1 Watershed Planning Unit; and
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40 WHEREAS, the County has worked with the WUCC to develop and adopt the
41 Coordinated Water System Plan Update in 2016 to identify municipal water rights and
42 strategies to improve delivery of public water supplies and the County is currently working
43 to identify and assign the Department of Ecology well log data base to parcels by watershed
44 sub -basin which is a critical first step to help identify existing and future private (permit -
45 exempt withdrawals) and public (Group A /B) domestic water demand in affected basins;
46 and
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48 WHEREAS, the PUD recently completed an assessment of agricultural water rights in
49 the county and is leading a multiple party Drought Contingency Plan effort to identify long -
50 term water supply needs and strategies to meet those needs; and
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I WHEREAS, the Lummi Nation recently initiated a study to identify potential water
2 supply and /or mitigation solutions to address long -term water supply needs and mitigation
3 options to help maintain adopted instream flows; and
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5 WHEREAS, the Birch Bay Water & Sewer District is drilling several test wells to
6 conduct deep aquifer explorations in the county to identify possible new groundwater
7 supplies; and
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9 WHEREAS, the Ag Water Board and the individual WIDs are working on their
10 individual comprehensive plans and obtained a grant to study model stream augmentation
1.1 on Bertrand Creek; and
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13 WHEREAS, the County Council supports further study to find suitable mitigation
14 options to address impairment of instream flows that may include: water banking, fee -in-
15 lieu mitigation payments, site -based consumptive use conservation and water use efficiency
16 strategies, stream and /or groundwater augmentation, improved storage (winter flow
17 capture) and improved cost - efficient delivery of public water; and
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19 WHEREAS, the County will continue to meet with the Hirst petitioners in settlement
20 talks with the goal of identifying suitable mitigation strategies for impacts to instream flows
21 from domestic permit- exempt groundwater withdrawals; and
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23 WHEREAS, there have been productive meetings with the State Legislature, support
24 from the Washington State Association of Counties and other groups, and meetings with
25 local state legislators of both parties and of both chambers; and
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27 WHEREAS, state legislative action is needed so that the County can adopt
28 permanent water availability regulations that restore certainty for property owners.
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30 NOW, THEREFORE, BE IT RESOLVED that the Whatcom County Council requests
31 the State Legislature's urgent attention to this matter, and strongly recommends
32 amendments to the Growth Management Act and adequate funding to the Department of
33 Ecology that would resolve the uncertainty created by the Hirst decision while adequately
34 protecting instream flows. The County is supportive of legislation that would allow counties
35 to rely on state - adopted instream flow rules to determine legal water availability when such
36 rules include a Department of Ecology mitigation program for permit exempt wells in closed
37 basins that provides an overall net ecological benefit within the same closed basin. Such
38 mitigation plans may include:
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40 • A fee -in -lieu of mitigation payment option for permit exempt wells in closed basins
41 for affected permit applicants, which would allow permits to proceed while state
42 and counties provide for the actual timely instream flow mitigation.
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44 • Allow counties to condition permits to limit daily use of state permit exempt
45 groundwater withdrawals to less than 5000 gallons per day and for specific
46 purposes.
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48 • Allow use of unexercised municipal water rights for mitigation purposes.
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50 • Allow for an "out -of- kind" instream flow impairment mitigation option that provides
51 an overall net ecological benefit within the same sub - basin.
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53 • Provide financial assistance for developing public rural water supplies, mitigation
54 projects and /or water banks.
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BE IT FURTHER RESOLVED that any such legislation also needs to provide funding
for the Department of Ecology to update instream flow rules that need to incorporate the
effects of, and, where necessary, mitigation for permit exempt wells in closed basins, or
have already been identified as in need of improvement in adopted watershed management
plans under Mfj 1, tprshed Planning Act.
, /day of April , 2017.
C+a0�° WHATCOM COUNTY COUNCIL
A ATCOM_ t]Ui'►TY, WASHINGTON
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if Awl
Dana Br6wh-- ga is of .tie Council 6chinan, Council Chair
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APPROA/ Q TO � 1lM:
Civil Deputy Prosecutor