The Washington Growth Management Hearings Board has ruled that Whatcom County's land-use regulations in Lake Whatcom watershed don't do enough to protect the lake's water quality.
"The county's unsupported assertion that its regulations are adequate to provide the needed protection rings hollow," the board's ruling states. "The current report on Lake Whatcom water quality demonstrates that the existing regulations have not protected Lake Whatcom and that the problems are actual and proven, not speculative."
Among other things, the board ruled that county regulation changes approved in 2011 were inconsistent with the county's own comprehensive plan, which says the county should minimize development around the lake and work with property owners to find "acceptable development solutions at lower overall densities than the present zoning allows."
Instead, the board determined that when the county amended rural development regulations in 2011, the new rules for a portion of the lake watershed would allow property owners to do more intense development and possibly increase polluting runoff into the lake.
The City of Bellingham and resident Eric Hirst challenged that action by the county, and the board ruled that "Bellingham and Hirst have met their burden of proving the county's failure to provide the necessary measures to protect Lake Whatcom's water resources."
Rules on lake development have been a contentious issue between the city of Bellingham, county officials and the state Department of Ecology. Ecology has been prodding the city and county to take steps to curb phosphorus-laden runoff from developed areas, because rising levels of phosphorus in the lake have triggered increased growth of algae.
Besides reducing the dissolved-oxygen supply and harming fish, algae growth sometimes gums up the city's water filtration system. In 2009, that problem was serious enough to require restrictions on water consumption within the city. The lake is the city's sole water source.
The board's ruling noted that in January 2011, under former Mayor Dan Pike, the city filed a petition with the Department of Ecology asking the state agency to close the lake watershed to the drilling of new wells for home construction. At the time, Pike said the city was not satisfied with the county's progress on restricting development in the watershed.
Ecology rejected Pike's petition. The board's ruling noted that Ecology relied on the county's assurances that tougher lake-protection measures would be in place by the end of 2011. But that has not yet happened.
The board's findings on county zoning near the lake were embedded in a 177-page decision and order that reviewed a variety of legal challenges to the County Council's 2011 amendments to land-use regulations.
Those regulations affect a variety of rural areas that have some level of development already in place, dating from a time when zoning regulations were minimal or nonexistent. Those areas stretch from Eliza Island and Point Roberts, to Nugents Corner on Mount Baker Highway.
The board ruled that the county's 2011 amendments to development rules in the rural areas violate state law, because the amendments don't do enough to protect the rural character of the surrounding area. The board declared that some of the county's new provisions for the areas are legally invalid.
The board ordered the county to rewrite its regulations by July 10, 2012, to make them compliant.
Assistant City Attorney Alan Marriner said it would take time to determine all of the implications of the massive ruling. He noted that the board did not agree with the city's legal challenge in every case, but after a first glance, it appeared as though the city got much of what officials wanted.
Futurewise, an anti-sprawl environmental organization, also challenged the county's rural land use rules. Tim Trohimovich, director of planning and law for Futurewise, said the board's ruling will force the county to make its regulations for partly developed rural areas somewhat more restrictive in many areas of the county.
"Obviously, we're pleased with the decision," he said.
County Council President Sam Crawford was not immediately available for comment.
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