Foster Pepper & Shefelman PLLC
Attorneys at Law, Seattle


LAND USE & MUNICIPAL NEWS
APRIL 2001
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Sweeping Victory in Whatcom County
Sewer Interceptor Case
BY Richard Settle and Steven Jones
Rebuttals:
Whatcom County Water District No. 10 (“District”) provides water and sewer services in the Lake Whatcom area south of Bellingham, including the Sudden Valley and Geneva communities. Sewer service was commenced around Lake Whatcom in 1968. In order to protect the lake from pollution by failing on-site septic systems, the District planned construction of a second sewer interceptor in about twenty years. As the original existing interceptor approached capacity because of the rains and the improperly designed combined storm-sanitary sewer system,
over a decade ago, the District prepared plans and a proposal for the long-contemplated second interceptor. However, neighborhood groups adamantly opposed to growth the groups are only opposed to growth within the drinking water watershed!
blocked construction of the interceptor for the past decade by filing appeals in every conceivable administrative and judicial forum. Meanwhile, development in the area has been stopped since 1992 by a moratorium on new sewer service, preventing even the owners of existing lots from building homes. Moreover, raw sewage overflows periodically occur as a result of heavy rains, and the design of the system,
impairing the water quality of Lake Whatcom, which is the sole source of drinking water for most of Whatcom County. False. Only about half of the County.


When a superior court decision threatened years of additional delay by invalidating the county hearing examiner’s approval of the interceptor, the District retained Use Foster Pepper to appeal the superior court decision and advise the District on a SEPA compliance strategy. After months of extensive briefing and skirmishes with the opposition, on March 6, 2001, the Court of Appeals issued its decision in Wells and Watershed Defense Fund v. Whatcom County Water District No. 10. In a thorough and enlightened opinion
FALSE. The opinion was colored by the withholding of significant information.
written by Judge Susan Agid, the court unanimously reversed the trial court and ordered reinstatement of the county permit for the interceptor.

The Court of Appeals not only reversed the trial court’s legal bases for invalidating the permit, but also overturned the trial court order remanding the permit application to the hearing examiner for a new decision that would have created new opportunities for multiple appeals and much additional delay. It is unusual for an appellate court to conclusively resolve land use controversies without remand to a lower court or administrative body. However, cognizant of the unconscionable delay that had occurred in this case and the adequacy of the record to decide all issues,
FALSE: What will be unconscionable is the harm to the water quality of the lake and the people and critters who depend on it as the sole source of safe water.

FALSE: The record failed to acknowledge the Federal listing of the Lake as a Federal CWA 303(d) impaired water body.
the Court of Appeals did so in this case and ordered issuance of the permit. After a decade of obstruction by tenacious opposition, They got this right, and the opposition has not yet rested it's real case.
the Court’s decision paves the way for the interceptor to be constructed, long-suffering property owners FALSE: Who will suffer forever are the future potential users of the water supply, who have no option for safe drinking water.
to build homes on their lots, and raw sewage overflows to be eliminated. FALSE: The interceptor will not even eliminate raw sewage overflows, just reduce them.
RICHARD SETTLE
ABOUT THE AUTHOR

Dick is an of counsel member of our Land Use & Environmental Practice Group. His practice focuses on land use, environmental and municipal law. His experience includes the representation of landowners, municipalities, and citizen groups in virtually all areas of state and local land use regulation before state and local agencies and trial and appellate courts.

Dick has also been Professor of Law at the University of Puget Sound School of Law and its successor, Seattle University School of Law, from 1972 to present.

Dick earned his bachelor’s degree, magna cum laude, and his J.D. from the University of Washington. Dick practices in our Seattle office.