Friday, August 17, 2007

A Tale of Two Cities: Watershed Protection Law Case Studies

Some folks have requested more background information on what can be done to help preserve the Lake Whatcom Reservoir. So, with that in mind, here is another longish piece that appeared in the April 2002 Whatcom Watch. I collaborated with Tom Pratum to research and publish the following Cover Story entitled: 'An Examination of Two Laws That Have Been Used to Protect Watersheds'.

During the 5-plus years since this was published, much additional development has occurred around Lake Whatcom, with increased runoff and continued spills contributing to measureable additional degradation. Sadly, all of the considerable efforts and funds expended since then have not even been able to slow down the rate of raw water degradation, much less stop or reverse it. So, the 2002 story remains as applicable today as it did then. The message is that not all well-intended laws work, and those that do require strong and continuing efforts on the part of both communities and their citizens.
Both the City of Bellingham and Whatcom County have been under attack for their apparent failure to take significant measures to protect the sole source of drinking water for 85,000 residents—Lake Whatcom. This attack has become shrill with the recent sewage overflows in Sudden Valley and what would appear to be a multi-agency failure to act to stem this flow of raw sewage into the lake.

The four-day December 2001 sewage overflow and spill into the lake from Water District 10 facilities at Sudden Valley went unabated for far too long. It attracted many observers who are right to ask–what is going on here? Isn’t this against the law?

The simply stated cause of this spill was ‘excessive storm water infiltration into Water District 10’s sewer lines due to heavy rainfall’—this despite the recent installation of a large 693,000-gallon detention tank to alleviate exactly this type of situation from happening again, as it has repeatedly done in the past.

Sewage Overflows Under Control?

Now we are told that the situation is, at least temporarily, under control because additional large, portable tanks are on-site to augment the limited capacity of vacuum trucks used to haul excess sewage to the city’s sewer system. The long-term fix being proposed is to install a larger sewer interceptor system to directly connect to the city system. The construction of this new interceptor line has already begun.

Because of existing development, both the detention tank and new sewer interceptor now seem necessary to protect public health; but will they really solve the problem, or merely enable more development to occur so that the same unacceptable situation happens again in the future?

The real problem is not too much rain, because that has been happening in nature for hundreds and thousands of years. The problem is the already excessive and growing development of homes and other impervious surfaces around a public water supply reservoir, which is also being used as a vehicle transportation corridor as well as for swimming, boating and fishing.

By replacing natural vegetation with pavement, runoff volumes can be up to sixteen times greater, causing more flooding and erosion. This increased runoff picks up greater quantities of sediments as well as dirtier pollutants, like pesticides, fertilizers, metals, and fecal matter, on its way to the lake.

Prevention and Protection v. Treatment and Mitigation

Of course, detention/retention systems and treatment devices can be built to mitigate storm water runoff damage, but these are rarely more than 50 percent effective, and they cost all ratepayers big money, not just those who happen to be living in the watershed. Often, these types of facilities are required or built only after a serious problem has already occurred, too late to prevent it.

That is why it makes sense, even in urban areas, like the City of Bellingham, to adopt a policy of prevention and protection over treatment and mitigation regarding the Lake Whatcom watershed. That is also why it makes sense to limit further development in this watershed, outside the city limits.

Are the City’s Hands Tied?

As a water provider to 85,000 citizens, just what control does the city have outside of its boundaries? Some would say that the city’s hands are tied—the vast majority of its reservoir lies outside of its jurisdictional boundaries. The question is: are the city’s hands really tied? Or, do the tools exist for the city to exert its influence over this body of water, which it has a keen interest in preserving?

Here we present two often-cited cases in which a city attempted to apply its interest in water resources outside of its jurisdictional boundaries. These cases only show the obvious legal paths that have been pursued. Using this historical information as a base, we hope that a more thorough mining of legislative and administrative rules will turn up further avenues to pursue.

Water Pollution—Protection From

Our first example comes straight from the Revised Code of Washington (RCW). Over 100 years ago, in 1899—only 10 years after Washington became a State and its constitution adopted—our legislature authorized Chapter 35.88 RCW (Water Pollution—Protection From; the text is shown in the sidebar on the facing page).

Intended as enabling legislation to help cities like Bellingham protect their water supply resources, this RCW was challenged and ultimately found unconstitutional in 1928, a legacy that continues to inhibit effective protection efforts.

That development on an urban scale is inherently inappropriate in a public water supply watershed seems so obvious that even our ancestors knew it as common sense, without needing to scientifically prove or justify it. Maybe that is why our state legislature, back in 1899, passed Chapter 35.88 RCW to avoid problems like this one.

Future Generations

As contemporaries of Teddy Roosevelt, might they have been thinking of the problems, which future generations would have if such protections were not adopted and used? Why else would they even go to the trouble to pass this measure?

It is certain they were not thinking that Chapter 35.88 RCW would be challenged and ruled unconstitutional, only 28 years later, in Brown v. Cle Elum; a decision which continues to limit its use and thereby its intended effectiveness in protecting the Lake Whatcom Reservoir. This limitation has required cities to become more creative and forward thinking in their watershed protection strategies. Our second case, Tacoma v. Welcker, recounts such a strategy, which, unlike Brown v. Cle Elum, has survived the test of time.

Brown v. City of Cle Elum (Washington 1927)

Exercising its police powers, the City of Cle Elum passed an ordinance pursuant to RCW 35.88, to protect its water supply source, the Cle Elum River (near its outlet at Lake Cle Elum, located in a National Forest preserve about six miles northwest of the city).

The main features of this ordinance included:

•Prohibitions against swimming, fishing, boating in the lake;

•Prohibition against dumping raw sewage into any lake, river, spring, stream, creek or tributary which constitutes the source of water supply;

•Prohibition against camping in the watershed;

•No dwelling could be constructed or maintained in the entire (about 23 miles long with a maximum width of 17 miles) watershed, unless said dwelling is provided with a sanitary toilet. Said toilet must be so designed and so kept that the contents of said toilet cannot drain on the surface of the ground or reach the water through the ground;

•Every person who deposits or causes to be deposited any matter or thing whatever, dangerous or deleterious to health, or any matter or thing, which may or could pollute the waters or system, shall be deemed guilty of violation of the ordinance, punishable by fine, imprisonment, or both.

Initial Judgment Reversed

The initial trial in Kittitas County Superior Court [ca 1927] resulted in a judgment awarding an injunction in favor of the plaintiff, Brown, who wanted to continue renting property from the U.S. Government for his cottage, and use the lake for boating, fishing and swimming.

However, the City of Cle Elum appealed to the Washington State Supreme Court and the earlier decision was reversed. In this latter decision, the city’s ordinance was:

• presumed a valid exercise of its police power;

• held not invalid as exercising police power over United States forest preserve;

• held not unreasonable in prohibiting swimming, fishing and boating in the lake.

Additionally, it was found:

•A lessee of land along lake in forest reserve held is not entitled to enjoin the city from enforcing ordinance to protect water supply;

•States may exercise ordinary police power over United States forest reservation for preservation of public health.

Court Predicts Controversy Over Territorial Limits

Portending what was to come on re-argument of this case, the court concluded:

“There looms in the horizon of this controversy a question of far-reaching importance; that is, as to whether or not the Legislature can constitutionally delegate to a city authority to exercise police power beyond its territorial limits and outside the boundaries of property it may own beyond its territorial limits, by the passing and enforcing of ordinances assuming to regulate the conduct of citizens beyond such limits and boundaries. No argument has been presented to us here touching that question, and we purposely refrain from expressing any views thereon. The city’s power is here challenged only upon the two grounds we have noticed: (1) The United States ownership of the lands and waters; and (2) the reasonableness of the ordinance. No other question is here decided.”

Re-Hearing of Case Favors Brown

Brown v. Cle Elum was granted a re-hearing, and on November 23, 1927, the Washington Supreme Court gave this decision: “Upon re-argument of the case before the court en banc, the question referred to in the foregoing quotation was presented to the court, and after such presentation we are of the opinion that the ordinance in question is unconstitutional.”

Supporting its decision, and citing Article XI, Section 11 of the Constitution (sidebar shows relevant part of Constitution), the court found:

•Penal ordinance protecting water supply from lake, outside city limits, violated Constitution limiting exercise of police power by city to own limits;

•Statutes empowering city to pass penal ordinance affecting water outside corporate limits violated Constitution limiting exercise of police power to city’s limits;

•Municipalities have only delegated legislative powers and Legislature cannot exceed constitutional limits in delegating powers.

Because of this decision, jurisdiction regarding matters of pollution of state waters is left to the state via RCW 90.48 (Water Pollution Control). The state enforcement entity is the Department of Ecology—whom some have questioned regarding their ability to act in an expeditious matter in the recent Sudden Valley sewage overflow.

Is this the end of the story? Not quite—nearly all municipalities depend on water resources outside of their political boundaries, and it was only a matter of time before another avenue of protection made it to the State Supreme Court.

City of Tacoma v. Welcker (Washington 1965)

The City of Tacoma obtained a surface water right to divert water from the Green River in 1913. The Green River watershed then became the city’s principal water source. This watershed lies in southeastern King County and is thus a fair distance from the incorporated boundaries of Tacoma.

In a situation reminiscent of Bellingham, the city did not (and still does not) have ownership of much of this watershed.1 However, in contrast to our own unfortunate situation, the Green River watershed lies in the Cascade foothills and is relatively far from Puget Sound urbanization—even today.

In 1961, the U.S. Army Corps of Engineers constructed a flood control and water storage dam across Eagle Gorge on the Green River for the purposes of creating a reservoir. This is referred to as the Howard Hansen Dam and the impounded water behind it is the Howard Hansen Reservoir. Although the city water withdrawal is downstream of the reservoir, this body of water acts as indirect storage for Tacoma’s water supply needs.

While the City of Tacoma owned very little of the watershed land, it had agreements with larger landholders—governmental agencies, railroad, and timber companies—to help protect this water resource.

Buffer Strip Along Shoreline

With the idea that it is cheaper to protect than to purify, the city reasonably desired to acquire all of the smaller parcels of land to complete a buffer strip along the shoreline, which would enable natural filtration of any upslope runoff as well as discouraging recreational use of the newly created Howard Hansen Reservoir.

To this end, the city endeavored to acquire by purchase and condemnation this land adjacent to the reservoir. The condemnation actions were initiated based upon a Tacoma city ordinance, passed on October 23, 1962, which declared that acquisition of these properties was necessary for the purpose of protecting the water supply from pollution.

As with the Cle Elum case, Tacoma referred to statutory law in the Revised Code of Washington to support its right of condemnation. In particular, provisions of RCW 8.12.030 (Condemnation authorized–Purposes enumerated; text is shown in the sidebar) and RCW 35.92.010 (Authority to acquire and operate waterworks; relevant part of text is shown in sidebar) were used to justify this action.

Condemnation Authorized to Protect Water Supply

One of the purposes for which condemnation is authorized in RCW 8.12.030 is to condemn land “within or without the limits of such city” to “protect such supply of fresh water from pollution.”

RCW 35.92.010 further states that a city “may acquire by purchase or condemnation and purchase any properties or privileges necessary to protect its water supply from pollution.” This ability of a public entity to acquire private property is often referred to as the right of eminent domain.

The parties whose land was to be condemned countered in part that they were not utilizing their land in a manner so as to be a threat to the city’s water purity, and even if they were, the city’s chlorination process had proved to be effective at ensuring safe drinking water. The initial condemnation petition was dismissed in King County Superior Court.

While no argument was made that the city had the power of eminent domain to protect its water supply, it was decided that the present condemnation action was arbitrary and capricious due to the lack of a current threat.

1965 State Supreme Court Decision

The dismissal was reversed and remanded by the State Supreme Court on February 18, 1965. The court agreed with the city that the acquisition of a buffer strip to protect its water supply was a reasonable action to protect said water supply in the future, and was therefore not arbitrary and capricious.

To quote from the justices’ decision:

The fact that the water now being supplied by the city is potable and does not exceed tolerable contamination levels, or that such contamination as presently exists cannot be traced to the usage of the lands here involved, in nowise detracts from the wisdom or present necessity of providing reasonable safeguards against a reasonably realistic and foreseeable future danger of contamination. A ‘stitch in time’ has never been considered capricious. And, the fact that expert witnesses may disagree as to the desirability of one method of protection, as opposed to another, does not perforce render one choice arbitrary.

A rehearing was denied on March 25, 1965, and this case has rested in the category of “good law” ever since. The case has been cited many times over the years; most commonly to justify the necessity of eminent domain actions.

Condemnation Requires “Just Compensation”

While Tacoma v. Welcker may still be good law, is this a case we can really expect to help us in our watershed protection efforts? Possibly, but it is unlikely to completely solve our problems for us. While it clearly allows one to argue that the City of Bellingham has a right to condemn lands within its watershed, said lands would not be obtainable without substantial cost—condemnations do require “just compensation.”

The time for the city to use its right of condemnation to the extent Tacoma demonstrated in 1962 likely passed long ago. The expense of such action now would likely be prohibitive2, and on the same order as the “pie-in-the-sky” proposal to pump water out of Baker Lake or Ross Lake and pipe it to Bellingham (if such a water right could even be obtained).

It may be possible to use eminent domain in a limited manner to achieve a more limited watershed protection objective. An example would be condemnation of developable lots in the Geneva and Sudden Valley areas to remove these potential development impacts from the watershed.

Water supply protection is a very serious matter, and it is the duty of our city and county governments to tackle it, expeditiously and effectively. It is incumbent upon these governments to develop a sensible, but more comprehensive approach than that which now exists, and to listen to the ideas and concerns of citizens in this endeavor.

As Theodore Roosevelt said, the “greatest good for the greatest number” should be our goal in responsibly protecting our precious water supply resource. He also said, “The shots that hit are the shots that count.”


1. According to Tacoma Public Utility information, the city currently owns approximately 10 percent of its 149,000-acre watershed.

2. For the purposes of rough calculation, if the city were to provide a 0.5-mile buffer around basin 3 alone, it would need to acquire about 16.6 miles of shoreline (basin 3 has about 20 miles of shoreline, but 3.4 miles are already in public hands) along with approximately 5000 acres inland. If we assume the shoreline to be priced at $1000-4000 per front foot (waterfront is expensive), this shoreline alone would cost $87.6 -$350.6 million. The remaining inland area would constitute a far lesser amount (probably on the order of $10-$15 million).
Tacoma authorized only $400,000 to acquire its buffer in 1962. While purchasing the shoreline buffer would eat the lion’s share of the funds, the inland buffer calculations used above may be grossly overstated for Lake Whatcom, because 69 percent of this watershed is already zoned for forestry (2/3 public, 1/3 private)— generally regarded as an ideal watershed land use.