Sweeping Victory in Whatcom County|
Sewer Interceptor Case.
|By Richard Settle and Steven Jones|
|Whatcom County Water District No. 10 ("District") provides water and sewer services in the Lake Whatcom area south of Bellingham, including the Sidden 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 constructon of a second sewer interceptor in about twenty years. As the original existing interceptor approached capacity over a decade ago, the District prepared plans and a proposal for the long-contemplated second interceptor. However, neighborhood groups adamantly opposed to growth 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, impairing the water quality of Lake Whatcom, which is the sole source of drinking water for most of Whatcom 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 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. Whatcon County Water District No. 10. In a thorough and enlightened opinion 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 appelate court to conclusively resolve land use controversies without remand to a lower court or administrative body. However, cognizant of the unconscionable delay that had occured in this case and the adequacy of the record to decide all issues, the Court of Appeals did so in this case and ordered issuance of the permit. After a decade of obstruction by tenacious opposition, the Court's decision paves the way for the interceptor to be constructed, long-suffering property owners to build homes on their lots, and raw sewage overflows to be eliminated. [emblem of letters "F" and "P" in a box.
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