Date: Fri, 29 Mar 2002 14:56:02 -0800
To: {list}
From: mayor@cob.org
Subject: Lake Whatcom Sewage Spill
Reply-To: mayor@cob.org

Dear Interested Citizen:

I am writing to respond to a January 23, 2002 complaint and subsequent correspondence concerning the discharge of sewage into Lake Whatcom late last year.  As you know, I am committed to protecting the health of our environment, and activities to carefully manage the Lake Whatcom Watershed are among my highest priorities.

Since receiving the complaint, the City of Bellingham has undertaken an in depth review of whether RCW 35.88 provides the city with enforcement authority outside of its jurisdiction.  An initial quick review of this statute indicated such authority seems to be provided.  As a result of our further review, however, it is clear we have no such authority outside of Bellingham city limits and are therefore in no position to take any direct enforcement action regarding the discharge of sewage into the lake late last year.

In performing our analysis, City staff discussed the matter with officials from the state departments of Health and Ecology, the Municipal Research Services Center, and the law firm of Preston, Gates, Ellis, specifically attorney Liz Thomas, who has expertise in and represents the City of Bellingham on various water-related legal issues.

Based upon these discussions and a more in depth legal analysis, the City has determined that it does not have authority to exercise enforcement authority beyond the City limits and that any attempt by the City to exercise the powers conferred by RCW 35.88 outside the City limits would be found unconstitutional.

RCW 35.88 improperly authorizes a City to exceed its authority under the constitution. This is the reason that in Brown v. Cle Elum, 145 Wash. 588, 261 P.112 (1927) the City of Cle Elum's ordinance was held invalid and why any attempt by the City of Bellingham to enact an ordinance which attempted to regulate conduct outside the City limits would also be unconstitutional.

Thus, the City is relying on the state Department of Ecology to enforce any violations of the water pollution control statute currently in effect, which is RCW 90.48.  This statute was enacted in 1973, and is clearly the most recent water pollution control statute.  (RCW 35.88 was enacted in 1899).  RCW 90.48 was enacted, in part, in response to the adoption of the Federal Clean Water Act and expresses a legislative intent that water pollution issues be dealt with at the State level.  This statute confers significantly greater enforcement powers upon the Department of Ecology than those purportedly conferred on cities by RCW 35.88.  For example, RCW 35.88.040 provides for a maximum penalty of five hundred dollars for any person who pollutes the water, while RCW 90.48.140 provides for a penalty of up to $10,000 dollars and/or one year in jail.  Additionally, under this penalty provision, every day upon which a willful violation occurs could be deemed a separate and additional offense.

Thus, the City will not be undertaking a separate investigation of this matter but will remain in support of and in contact with the Department of Ecology concerning its investigation and enforcement action.  It is our understanding that the Department of Ecology has issued an immediate action order to Water District #10 and the District has been required to update its response plan to eliminate future overflows.  A final decision on what enforcement action will be taken will be made by the Department of Ecology.

We will also continue our focused efforts at working with Whatcom County and implementing the Lake Whatcom Management Plan, which we believe to be the most effective tools possible for exerting our influence outside of the city's boundaries to protect the watershed.

I also want to note that, despite the sewage overflow, the water served to the citizens of Bellingham continues to meet all state and federal safe drinking water regulatory requirements.  However, the City does not want to see this sewage overflow problem recur, and we certainly will track follow up actions taken by Ecology to ensure that the City's water supply remains safe and reliable into the future.

Sincerely,

Mark Asmundson, Mayor
City of Bellingham