Blaine Water Coalition EIS Comment to Whatcom County
From: ottopointer@aol.com <ottopointer@aol.com>
Memorandum
To: Whatcom County Council & Planning Commission
From: Otto Pointer, Concerned Resident (Blaine/Whatcom County), Blaine Water Coaliton
Date: June 1, 2025
Re: Comprehensive Plan Comments – Opposition to “Creekside” (East Harbor Hills) Development & Need for City of Blaine Compliance with Environmental/Land Use Standards
Comments on the Whatcom County Comprehensive Plan: Advocating for Environmental Compliance and Responsible Growth Management in Blaine
I. Executive Summary
These comments are submitted in response to the ongoing review of the Whatcom County Comprehensive Plan, with a particular focus on ensuring the City of Blaine's adherence to critical environmental and land use regulations. The analysis herein demonstrates a consistent pattern of non-compliance by the City of Blaine with state mandates, including the Growth Management Act (GMA) and the Shoreline Management Act (SMA), as well as with best practices for stormwater management and critical area protection. This pattern of regulatory disregard poses significant threats to vital ecosystems, particularly Drayton Harbor and its associated watersheds, and undermines the overarching goals of coordinated growth and environmental stewardship in Washington State.
The central argument presented is that the City of Blaine's current practices, exemplified by its inconsistent application of stormwater standards, discrepancies in Shoreline Master Program (SMP) setbacks, and the problematic East Harbor Hills Creekside development, are fundamentally incompatible with sustainable growth. These comments advocate for stringent requirements to compel Blaine's full compliance with the most current environmental standards. Specifically, it is recommended that the proposed Creekside development be withdrawn from the Urban Growth Area (UGA) and the land be rezoned for low-density use, mirroring the precedent set by the Grandis Pond de-annexation. Furthermore, any future UGA land swap for Blaine must be explicitly conditioned upon a verifiable and sustained record of adherence to all environmental and land use mandates.
II. Introduction: Legal Comments on the Whatcom County Comprehensive Plan
The purpose of these legal comments is to underscore the imperative for the City of Blaine to achieve and maintain full compliance with the Washington State Growth Management Act (GMA), the Shoreline Management Act (SMA), and other pertinent environmental protection standards. The integrity of the Whatcom County Comprehensive Plan hinges on the consistent application of these foundational legal frameworks across all jurisdictions within the county.
Drayton Harbor, a critical ecosystem within Whatcom County, serves as a vital natural resource, supporting diverse marine life, including salmon and shellfish, and contributing significantly to the region's environmental health and economy. The ecological health of Drayton Harbor is intrinsically linked to the quality of upstream waters and the effectiveness of land use planning within its watershed. Uncoordinated and unplanned growth, particularly in environmentally sensitive areas, poses a direct threat to the quality of life and sustainable economic development envisioned by state law.
The legal framework governing land use and environmental protection in Washington State is robust, primarily articulated through the Revised Code of Washington (RCW). The GMA (RCW 36.70A) mandates that state and local governments manage growth by identifying and protecting critical areas and natural resource lands, designating urban growth areas, and preparing comprehensive plans. These comprehensive plans must be internally consistent and include elements such as capital facilities, which encompass stormwater management. Complementing the GMA, the SMA (RCW 90.58) specifically aims to prevent uncoordinated development of shorelines, protecting natural resources, increasing public access, and encouraging water-dependent uses. Local Shoreline Master Programs (SMPs) are developed under the SMA and require review and approval by the Washington State Department of Ecology (DOE) to ensure consistent management. Furthermore, counties are explicitly authorized to establish, acquire, and improve stormwater control facilities under RCW 36.89. The consistent application of these RCWs is paramount to safeguarding the environmental integrity of Whatcom County and its invaluable natural assets like Drayton Harbor.
III. Non-Compliance with Western Washington Stormwater Management Standards
A. The Mandate for Current Best Practices
The legislative intent behind Washington's growth management framework is clear: to prevent uncoordinated development that threatens the environment and quality of life. The GMA, codified in RCW 36.70A, requires local governments to adopt comprehensive plans that protect critical areas and natural resource lands, with provisions for essential public facilities such as stormwater management. The SMA, RCW 90.58, further reinforces this by mandating the protection of shoreline resources and the natural environment, with local SMPs serving as the primary regulatory instruments, subject to state review and approval. Counties, under RCW 36.89, possess the authority to establish and improve stormwater control facilities, recognizing their general benefit to all residents and their role in protecting life and property from stormwater damage.
Central to effective stormwater management in Western Washington is the Stormwater Management Manual for Western Washington (SWMMWW), periodically updated by the Department of Ecology. The latest version of the SWMMWW became effective on August 1, 2024. This manual provides comprehensive guidance on controlling the quantity and quality of stormwater runoff from new development and redevelopment, ensuring compliance with water quality standards and protecting receiving waters. The 2024 SWMMWW incorporates significant revisions aimed at achieving statewide consistency and enhancing usability.
The continuous evolution of the SWMMWW, from the 2019 version to the more recent 2024 update, reflects an ongoing commitment to incorporating the latest environmental science and best practices in stormwater management. The explicit focus on "statewide consistency" and "usability enhancements" in the 2024 manual indicates a recognition that effective environmental protection requires dynamic and responsive regulatory tools. Each update, particularly the 2024 version, introduces more stringent requirements, such as lower thresholds for pollution-generating hard surfaces and new guidance for managing emerging toxic organic pollutants like PCBs, PAHs, and PFAS. A failure to adopt and consistently apply the most current manual means that development projects will continue to operate under less protective standards. This perpetuates a cumulative degradation of water quality in receiving waters like Drayton Harbor, directly undermining the fundamental purpose of the GMA and SMA to protect the environment and critical areas.
B. Blaine's Inconsistent Application and Vesting Rights
Despite the clear mandate for current best practices, the City of Blaine exhibits a problematic inconsistency in its application of stormwater management standards. While Blaine updated its stormwater ordinance in 2018 to voluntarily comply with the then-current SWMMWW, and explicitly states that it "adopted the most recent version of the SWMMWW, which is the 2024 SWMMWW," a critical loophole exists. Blaine's code includes "vesting authority," which allows certain projects to be reviewed under the outdated 2019 SWMMWW. This means that while the 2024 manual is "enforced on projects that are not vested in the 2019 manual," a significant portion of development may still proceed under less protective standards.
The differences between the 2019 and 2024 SWMMWW are substantial and directly impact environmental outcomes. Key changes in the 2024 manual include:
- New Development and Redevelopment Project Thresholds: The threshold for applying Minimum Requirement 6 (Runoff Treatment) has been significantly lowered from 5,000 square feet of pollution-generating hard surface (PGHS) to 2,000 square feet. This change means that a greater number of projects will now trigger the requirement for runoff treatment under the 2024 manual, leading to more comprehensive stormwater quality control.
- Clarified Exemptions: The 2024 manual clarifies that exemptions for pavement maintenance or underground utility work apply only if the sole purpose of the project is that specific maintenance or utility work. These exemptions do not apply if the work is part of a broader new development or redevelopment project. This prevents developers from circumventing stormwater requirements by categorizing significant development as mere maintenance.
- New Guidance for Nutrients and Toxic Organics: The 2024 manual introduces new guidance for managing pollutants such as rubber preservatives (e.g., 6PPD-q), Polycyclic Aromatic Hydrocarbons (PAHs), Polychlorinated Biphenyls (PCBs), and Per- and Polyfluoroalkyl Substances (PFAS). This guidance includes suggestions for Source Control or Runoff Treatment Best Management Practices (BMPs), addressing emerging contaminants that were not explicitly covered in previous versions.
Blaine's assertion of having "already adopted" the 2024 SWMMWW, while simultaneously permitting projects to "vest" under the outdated 2019 manual, creates a fundamental policy contradiction. This is not merely a procedural oversight; it represents a strategic choice that effectively negates the environmental benefits intended by the adoption of newer, more protective standards. By allowing projects to bypass stricter thresholds and avoid addressing emerging pollutants, Blaine implicitly prioritizes developer convenience or cost savings over robust environmental protection. This pattern of partial compliance undermines the spirit and intent of the GMA and SMA, which emphasize the protection of critical areas and water quality. The consequence of this approach is that Blaine's "voluntary compliance" with state standards is insufficient to meet the environmental stewardship expected of a planning jurisdiction, leading to continued environmental degradation.
Table 1: Comparison of Key Changes: 2019 vs. 2024 SWMMWW
| Feature/Requirement | 2019 SWMMWW Standard | 2024 SWMMWW Standard | Implication of 2024 Update | |
|---|---|---|---|---|
| Runoff Treatment Threshold (PGHS) | 5,000 sq ft of pollution-generating hard surface (PGHS) | 2,000 sq ft of PGHS | More projects trigger runoff treatment, enhancing water quality protection. | |
| Project Exemptions (Pavement/Utilities) | Less explicit on scope, allowing for broader interpretation. | Exemptions apply only if the sole purpose is maintenance/utility work; not for broader development. | Prevents circumvention of stormwater requirements through project categorization. | |
| Guidance for Toxic Organics | Limited or no specific guidance for emerging pollutants. | New guidance for 6PPD-q, PAHs, PCBs, PFAS, including Source Control/Runoff Treatment BMPs. | Addresses a wider range of contaminants, improving overall water quality. | |
| Statewide Consistency | Less emphasis on consistent statewide guidance. | Focus on consistent statewide guidance and usability enhancements. | Promotes uniform and effective stormwater management across the state. |
C. Recommendation for Full and Consistent Compliance
To rectify these inconsistencies and ensure genuine environmental protection, the Whatcom County Comprehensive Plan must explicitly require the City of Blaine to fully and consistently apply the 2024 SWMMWW to all new development and redevelopment projects within its jurisdiction. This mandate must eliminate any exceptions for vesting under older manuals. Such a requirement is not merely a bureaucratic formality; it is essential to protect Drayton Harbor from ongoing pollution and to ensure that Blaine's development practices are genuinely consistent with state environmental goals and the intent of the GMA and SMA.
IV. Discrepancies in Shoreline Master Program (SMP) and Critical Area Setbacks
A. Shoreline Management Act (SMA) Requirements
The Shoreline Management Act (SMA), RCW 90.58, is a cornerstone of Washington State's environmental protection efforts, enacted to prevent "uncoordinated and piecemeal development of the state's shorelines". Its core objectives include protecting shoreline natural resources, increasing public access to publicly-owned shoreline areas, and encouraging water-dependent uses. Under the SMA, every city and county is required to adopt a Shoreline Master Program (SMP) that is tailored to its specific community while adhering to state guidelines. These SMPs serve as comprehensive visions for shoreline use and development, combining both plans and regulations. The Washington State Department of Ecology (DOE) plays a crucial oversight role, reviewing and approving local SMPs to ensure their consistency with the broader policies and provisions of the SMA.
Whatcom County's Shoreline Management Program (SMP), codified in WCC Title 23, directly implements the goals and policies of the SMA at the local level and forms an integral component of the Whatcom County Comprehensive Plan. The jurisdiction of Whatcom County's SMP is extensive, encompassing over 130 miles of marine shoreline, 60 miles of lake shoreline, and 220 miles of stream channels, along with all associated wetlands and floodways within 200 feet of the Ordinary High Water Mark (OHWM). This comprehensive scope underscores the county's commitment to broad shoreline protection.
B. Wetlands Delineation and Buffer Standards
The Growth Management Act (GMA), specifically RCW 36.70A, mandates that counties and cities designate and protect "critical areas," which are defined to include wetlands, critical aquifer recharge areas (CARAs), fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. A fundamental requirement under the GMA is that jurisdictions must utilize "best available science" when developing policies and regulations for the protection of these critical areas. Critical area regulations universally include requirements for buffers—vegetated lands adjacent to critical areas intended to protect them from activities occurring beyond the buffer.
Wetland delineation is the process of establishing the existence and physical limits of a wetland, typically involving the examination of vegetation, soils, and hydrology. It is important to note that delineations generally require revisiting if performed more than five years prior, as wetland conditions can change significantly over time due to shifts in hydrology, land uses, and plant species composition.
Whatcom County's Critical Areas Ordinance (CAO), WCC Title 16.16, establishes a robust framework for wetland protection. It categorizes wetlands (I-IV) and assigns corresponding buffer widths based on wetland category, habitat function score, and the intensity of adjacent land use. For instance, Category I wetlands, recognized for their exceptional value, are afforded buffers ranging from 50 to 300 feet, while Category III wetlands, though more common, still require buffers between 50 and 150 feet. Stream buffers within Whatcom County's CAO vary based on the presence of fish habitat and stream size, with larger buffers (e.g., 150 feet) for large fish-bearing streams, 100 feet for medium-sized fish-bearing streams, and 50 feet for non-fish-bearing streams. Furthermore, Whatcom County's new SMP, which became effective on March 13, 2025, increased buffer widths for shoreline streams from 150 feet to 200 feet upland from the OHWM, while marine shoreline buffers remain at 150 feet.
In contrast, Blaine's Shoreline Master Program was approved by the Department of Ecology on September 10, 2019. Blaine's Appendix A - Critical Areas Management Regulations, which forms part of its SMP, articulates a purpose to minimize development impacts to critical areas, protect water quality, and safeguard threatened/endangered species, explicitly stating adherence to "best available science" and consistency with state and federal regulations. However, documentation for a project within Blaine (Motts Hill Overlook) indicates that Category III wetlands are assigned a standard 50-foot buffer under Blaine Municipal Code 17.82.340 B. This 50-foot buffer for Category III wetlands in Blaine falls at the lowest end of Whatcom County's buffer range for the same category (50-150 feet).
This disparity in buffer requirements reveals a concerning inconsistency in the application of "best available science" and highlights a regulatory lag within Blaine's framework. The GMA unequivocally requires local jurisdictions to incorporate the "best available science" in their critical area regulations. Whatcom County's recent update to its SMP, which increased stream buffer widths to 200 feet, demonstrates an active effort to apply current scientific understanding to enhance environmental protection. Conversely, Blaine's SMP, approved in 2019, and its Critical Areas Management Regulations, while professing adherence to best available science, appear to prescribe narrower buffers for certain wetland categories compared to the more protective measures adopted by the county. This divergence suggests that Blaine's current standards may not fully reflect the most current scientific understanding, nor do they align with the more protective measures implemented by Whatcom County. The consequence of these less stringent standards is that Blaine's critical area protections are likely insufficient to adequately safeguard the ecological functions and values of these sensitive areas, thereby contributing to environmental degradation in areas such as Drayton Harbor. This outcome is directly at odds with the GMA's fundamental mandate.
Table 2: Comparison of Wetland/Stream Buffer Requirements: Whatcom County vs. Blaine SMP/CAO
| Critical Area Type | Whatcom County Buffer Width (ft) | Blaine Buffer Width (ft) | |
|---|---|---|---|
| Wetland Category I | 50-300 feet | (Not specified, but implied less than county's max) | |
| Wetland Category II | 50-275 feet | (Not specified, but implied less than county's max) | |
| Wetland Category III | 50-150 feet | 50 feet | |
| Wetland Category IV | 25-50 feet | (Not specified, but implied consistent with county's range) | |
| Large Fish-Bearing Stream | 150 feet (increased to 200 ft for shoreline streams in 2025 SMP) | (Not explicitly stated for all streams, but general SMP setbacks apply) | |
| Marine Shoreline | 150 feet | (General SMP setbacks apply) |
C. Stormwater and NPDES Permit Setbacks
The requirement for consistent and adequate setbacks extends beyond general critical area protection to encompass areas impacting stormwater runoff and National Pollutant Discharge Elimination System (NPDES) permitted discharges. The Shoreline Management Act (SMA) and its associated SMPs are explicitly designed to protect water quality and the natural environment.
The interconnectedness of environmental regulations is profoundly evident in the relationship between critical area setbacks, stormwater management, and NPDES permits. Inadequate critical area setbacks for wetlands and streams directly compromise the effectiveness of stormwater management. Vegetated buffers are designed to filter pollutants, reduce erosion, and promote infiltration, thereby improving water quality before runoff enters receiving waters. When these buffers are insufficient or encroached upon, stormwater runoff carries a higher pollutant load, including sediment, chemicals, and pathogens. This increased pollution from poorly managed stormwater can, in turn, contribute to violations of NPDES permits, which regulate point source discharges from municipal separate storm sewer systems (MS4s) and wastewater treatment facilities. Therefore, Blaine's failure to adopt and enforce consistent, robust setbacks across its land use planning, including its SMP and Critical Areas Ordinance, creates a cascading effect. This effect exacerbates stormwater pollution, complicates compliance with NPDES requirements, and ultimately harms sensitive receiving waters like Drayton Harbor. This situation indicates a systemic rather than isolated regulatory failure, demanding a comprehensive approach to align Blaine's local regulations with broader environmental protection goals.
V. The Creekside Development: A Flagrant Violation of Comprehensive Plan Principles
A. Project Overview and Environmental Sensitivity
The Creekside at the Ridge development is a proposed Planned Unit Development (PUD) and Manufactured Home Community situated on approximately 49 acres in East Blaine. The proposal includes up to 155 manufactured home sites, private roads, stormwater facilities, and various community amenities. The site is currently undeveloped, characterized by a lightly forested mix of coniferous and deciduous trees.
Crucially, the Creekside PUD is located within a Critical Aquifer Recharge Area (CARA) and is in close proximity to Spooner Creek, which is identified as a salmon-bearing and Conservation Reserve Enhancement Program (CREP) protected creek. The development site is positioned directly atop an aquifer that recharges wellhead protection areas located within 0.5 to 1 mile of the Creekside Development.
The location of Creekside within a Critical Aquifer Recharge Area and adjacent to a salmon-bearing creek significantly elevates its environmental sensitivity. CARAs are indispensable for maintaining potable water supplies and are inherently susceptible to contamination. Salmon-bearing creeks, on the other hand, represent critical fish and wildlife habitat, essential for the ecological balance and biodiversity of the region. Placing high-density development in such ecologically vital areas presents an irreversible risk to both water quality and critical habitat. This directly contradicts the fundamental goals of the GMA, which explicitly mandates the protection of critical areas and natural resources. The inherent environmental vulnerability of the Creekside site necessitates the utmost scrutiny and strict adherence to the most protective environmental standards.
B. Inconsistent Density and Relaxed Standards
The proposed density for the Creekside development is a significant point of contention and a clear deviation from responsible land use planning in sensitive areas. While one document states 155 units on 49 acres, resulting in a density of 10.33 homes per acre, the applicant's narrative claims 155 units on 48.9 acres, representing "just under 3.2 units per acre," which they assert is "far less than what is allowed". This discrepancy in density calculation is alarming and requires clarification. Even the applicant's lower figure of 3.2 units per acre is problematic given the site's environmental sensitivity. Blaine's Municipal Code allows a maximum density of 4 units per gross acre in the PR Zone, with manufactured home parks permitted up to 150% of that, potentially allowing up to 293 units on 48.9 acres.
A core argument against the Creekside development is that its high density, coupled with "relaxed LID (Low Impact Development) standards," poses a direct threat of contamination to the CARA and Spooner Creek. It is alleged that the City of Blaine's Community Development Services (CDS) planning department "lowered LID standards for Creekside at the Ridge, despite similar standards being rigorously applied to the Grandis Pond PUD". Further, there are claims that the City of Blaine "amended zoning regulations to increase the allowable density within the CARA, facilitating the approval of the Creekside at the Ridge development," an action that "contradicts best practices for managing CARAs". Best practices for CARAs typically prioritize low-density development to minimize the risk of groundwater contamination.
For context, the Grandis Pond development, previously envisioned for approximately 1,000 homes on 440 acres, had a significantly lower calculated density of 2.34 homes per acre. Grandis Pond was ultimately de-annexed from Blaine's UGA, partly due to environmental concerns, including oil runoff through wetlands, and the expiration of land use entitlements. Concerns raised about Grandis Pond also included increased urban sprawl, degradation of Dakota Creek and the Drayton Harbor Watershed due to impervious surfaces, and the use of buffers that were smaller than those recommended by best available science.
The stark contrast in density and the alleged application of LID standards between Creekside (10.33 homes/acre or 3.2 homes/acre, with relaxed LID) and Grandis Pond (2.34 homes/acre, with rigorous LID) reveals a pattern of selective enforcement by Blaine's planning department. This inconsistency is particularly troubling given that both developments are situated in environmentally sensitive areas (CARAs, watersheds). Such a disparity suggests that the city is not applying its comprehensive plan and critical area protections equitably or consistently. The fact that Grandis Pond, a lower-density project with documented environmental concerns, was ultimately pulled out of the UGA establishes a compelling precedent. This precedent should apply with even greater force to Creekside, which presents a higher proposed density and similar, if not greater, environmental risks to the CARA and Spooner Creek. This selective application undermines the credibility of Blaine's land use planning process and its stated commitment to environmental protection under the GMA (RCW 36.70A.070).
Table 3: Density Comparison: Creekside vs. Grandis Pond Developments
| Development Name | Total Area (acres) | Total Homes (proposed/planned) | Calculated Density (homes per acre) | Key Environmental Sensitivity | Relevant Snippet IDs |
|---|---|---|---|---|---|
| Creekside at the Ridge | ~49 acres | 155 homes | 10.33 homes/acre (or 3.2 homes/acre as claimed by applicant) | Critical Aquifer Recharge Area (CARA), Salmon-bearing Spooner Creek, Watershed, WOTUS into Drayton Harbor | |
| Grandis Pond | 440 acres | ~1,000 homes | 2.34 homes/acre | Forested wetlands, Dakota Creek, Drayton Harbor Watershed, Critical Aquifer Recharge |
C. Ecological and Treaty Impacts
The proposed Creekside PUD development, with its high density and alleged relaxed LID standards, directly threatens to contaminate the Critical Aquifer Recharge Area (CARA) and Spooner Creek. This potential contamination carries significant environmental and public health risks, particularly to the shellfish rights of the Nation in Drayton Harbor, which is already identified as an impaired water body. Such impacts also directly threaten salmon habitats in Cain Creek, a waterbody hydrologically connected to Drayton Harbor.
These environmental degradations extend beyond local regulatory infractions; they directly implicate Washington State's legal obligation to protect salmon habitats. This obligation was unequivocally affirmed by the 2018 Supreme Court decision in Washington v. United States, commonly known as the "Culvert Case," which held that the state's failure to protect salmon habitats constitutes a violation of treaty obligations with Native American tribes. Furthermore, alleged violations related to habitat destruction and contamination in Semiahmoo Bay and Drayton Harbor are asserted to breach international treaties with Canada, specifically the Migratory Bird Treaty and the Pacific Salmon Treaty.
The environmental impacts of the Creekside development, particularly the potential contamination of CARAs and salmon-bearing creeks, represent a profound escalation of harm that extends to regional ecosystems, including Drayton Harbor, and carries significant legal liability. The explicit reference to the "Culvert Case" and the alleged violations of international treaties transforms the argument from one of mere local planning inconsistency to one of fundamental breaches of tribal treaty rights and international agreements. This broader legal context underscores the severe implications of allowing Creekside to proceed as proposed, elevating the matter to one of state and federal concern, not solely local land use. This perspective reinforces the imperative for Whatcom County to intervene and demand the withdrawal of this project.
VI. Blaine's Pattern of Non-Compliance and the UGA Land Swap
A. Documented History of Violations
The City of Blaine exhibits a well-documented history of environmental and land use violations, indicating a persistent pattern of non-compliance rather than isolated incidents. An amended complaint filed on June 3, 2024, explicitly alleges violations of civil rights and age discrimination directly linked to environmental degradation along salmon-bearing waters within Blaine and Whatcom County. This complaint further asserts that Blaine, Whatcom County, and the State of Washington have violated international treaties, specifically the Migratory Bird Treaty and the Pacific Salmon Treaty, concerning Semiahmoo Bay and Drayton Harbor. The complaint specifically cites "violations, such as those related to the National Pollutant Discharge Elimination System (NPDES) at the Lighthouse Treatment Facility and the destruction and contamination of salmon habitats" as exemplifying these breaches.
Regarding NPDES compliance, a 1996 inspection of the Blaine Wastewater Treatment Plant (Lighthouse Point Water Reclamation Facility) revealed "exceptionally high" effluent fecal coliform results that exceeded permit limits, and the biochemical oxygen demand (BOD5) reduction was less than required. While the Lighthouse Point Water Reclamation Facility is described as a "state-of-the-art" plant utilizing advanced Membrane Bio-Reactors (MBR) to purify wastewater to Class A reuse standards , the complaints and historical records suggest ongoing issues with compliance. More recently, an Administrative Order was issued to the City of Blaine on May 19, 2025, concerning the Downtown Revitalization Project. This order mandated compliance with the Water Pollution Control Act (RCW 90.48) due to contaminated stormwater and dewatering water discharge into Cain Creek, which is impaired for pH. The order specifically requires the installation of pre-treatment and treatment systems and regular monitoring to prevent further contamination.
Beyond specific permits, the aforementioned complaint also highlights "permit setback violations of the Shoreline Management Act and armoring of the harbor [that] have further contributed to declines in salmon populations and rare migratory birds". It additionally alleges "increased stormwater runoff and contaminants" and "cumulative impacts on water quality" stemming from "multiple upstream developments". Furthermore, historical accounts include allegations of the City disturbing over 100 burial sites during sewage plant construction in the mid-1990s, which led to a 2017 settlement.
The repeated and varied nature of these alleged violations—ranging from outdated stormwater practices and inconsistent SMP setbacks to high-density development in critical areas, historical and ongoing NPDES issues, and broader environmental degradation—paints a clear picture of systemic failure in Blaine's environmental and land use governance. This is not a series of isolated incidents but a consistent pattern of non-compliance, suggesting either an inability or an unwillingness to consistently adhere to state mandates and effectively protect natural resources. The inclusion of civil rights and treaty violations further indicates an erosion of public trust and a failure to uphold fundamental legal and ethical obligations. This comprehensive history of non-compliance provides a compelling and legally defensible basis to argue against granting Blaine additional land for development under the UGA land swap, as it strongly suggests that the city is not currently managing its existing land resources responsibly.
Table 4: Summary of Documented Violations by City of Blaine (GMA, SMP, NPDES)
| Date/Period of Alleged Violation | Type of Violation/Issue | Specific Issue/Description | Affected Area/Resource | Relevant Snippet IDs |
|---|---|---|---|---|
| June 3, 2024 (Amended Complaint) | Environmental Degradation / Civil Rights / Treaty | Environmental degradation along salmon-bearing waters; violations of Migratory Bird and Pacific Salmon Treaties | Salmon-bearing creeks/watersheds, Semiahmoo Bay, Drayton Harbor | |
| June 3, 2024 (Amended Complaint) | NPDES Violations | Violations related to National Pollutant Discharge Elimination System (NPDES) at Lighthouse Treatment Facility | Lighthouse Treatment Facility, Drayton Harbor | |
| June 3, 2024 (Amended Complaint) | SMP Setback Violations / Harbor Armoring | Permit setback violations of Shoreline Management Act; armoring of the harbor | Salmon populations, migratory birds, Drayton Harbor | |
| June 3, 2024 (Amended Complaint) | Stormwater Runoff / Cumulative Impacts | Increased stormwater runoff and contaminants; cumulative impacts from multiple upstream developments | Water quality, Drayton Harbor | |
| May 19, 2025 (Administrative Order) | Water Pollution Control Act (RCW 90.48) | Discharge of contaminated stormwater and dewatering water without adequate treatment | Cain Creek (impaired for pH) | |
| 1996 Inspection | NPDES Permit Limits | "Exceptionally high" effluent fecal coliform; BOD5 reduction less than required | Blaine Wastewater Treatment Plant | |
| Mid-1990s (leading to 2017 settlement) | Heritage Desecration | Disturbing over 100 burial sites during sewage plant construction | Tribal burial sites | |
| Ongoing (Creekside Development) | Comprehensive Plan / Critical Areas / LID | Inconsistent density, relaxed LID standards in Critical Aquifer Recharge Area (CARA) | CARA, Spooner Creek, Drayton Harbor watershed | |
| Ongoing (Stormwater) | SWMMWW Application | Inconsistent application of 2024 SWMMWW, allowing vesting under 2019 manual | Drayton Harbor, receiving waters | |
| Ongoing (SMP/CAO) | Setback Discrepancies | Blaine's SMP/CAO wetlands/stream buffers are less protective than Whatcom County's | Wetlands, streams, Drayton Harbor |
B. Conditioning Future Development on Compliance
The proposed Urban Growth Area (UGA) land swap, which involves de-annexing Grandis Pond and adding 460 acres of UGA land south of Semiahmoo, presents a critical juncture for Whatcom County. The de-annexation of Grandis Pond itself was partly driven by environmental concerns and expiring entitlements.
Given the documented pattern of non-compliance and the systemic failures identified in Blaine's environmental and land use governance, granting additional development capacity without demonstrated reform would be irresponsible and would perpetuate environmental harm. Conditioning the UGA swap on verifiable compliance transforms the swap from a mere land transaction into a powerful mechanism for environmental enforcement. This approach ensures that future growth is genuinely managed sustainably, in line with the objectives of the GMA , and protects the broader regional environment, including tribal treaty rights and international obligations.
Therefore, the Whatcom County Comprehensive Plan must explicitly condition any future urban growth area (UGA) land swap or expansion for Blaine on the City demonstrating a clear, sustained commitment to, and a proven track record of, full compliance with all state and county environmental and land use regulations.
Specifically, the 144-acre Creekside parcel (part of a larger 144-acre property under common ownership, though the PUD is 49 acres) should be pulled from the UGA, de-annexed from the City of Blaine, and rezoned for genuinely low-density development, such as 1 house per 5 acres. This action is imperative given its location within a Critical Aquifer Recharge Area (CARA), a vital watershed, and its critical connection to Waters of the United States (WOTUS) flowing into Drayton Harbor. This measure would align with the precedent established by Grandis Pond's de-annexation due to environmental concerns and would serve as a necessary safeguard to protect vital ecological functions and resources.
VII. Conclusion and Recommendations
The foregoing analysis demonstrates a compelling and urgent need for the City of Blaine to fundamentally realign its land use and environmental practices with state and county mandates. The current trajectory, marked by inconsistent stormwater management, inadequate critical area protections, and the problematic Creekside development, poses unacceptable risks to Drayton Harbor and the broader regional ecosystem. The documented pattern of non-compliance underscores a systemic failure that demands immediate and decisive action from Whatcom County.
To ensure sustainable growth that respects natural resources and legal mandates, the Whatcom County Comprehensive Plan must incorporate the following specific, actionable recommendations:
- Mandate Full and Consistent Compliance with the 2024 SWMMWW: The Whatcom County Comprehensive Plan must explicitly require the City of Blaine to adopt and consistently apply the 2024 Stormwater Management Manual for Western Washington to all new development and redevelopment projects within its jurisdiction. Any provisions allowing for vesting under outdated manuals, such as the 2019 SWMMWW, must be eliminated. This is crucial to ensure that stormwater management practices in Blaine reflect the most current scientific understanding and adequately protect receiving waters from pollution.
- Require Alignment of SMP and Critical Areas Ordinance Setbacks: Blaine's Shoreline Master Program (SMP) and Critical Areas Ordinance (CAO) must be updated to comport with Whatcom County's more protective wetland and stream buffer setbacks. This update must be based on the best available science to ensure that critical areas, including wetlands and fish-bearing streams, receive adequate protection from development impacts, thereby safeguarding water quality and vital habitats.
- Withdraw and Rezone the Creekside at the Ridge Development: The Creekside at the Ridge development must be withdrawn from the Urban Growth Area, de-annexed from the City of Blaine, and its 144-acre parcel rezoned for genuinely low-density development, such as 1 house per 5 acres. This action is imperative due to its location within a Critical Aquifer Recharge Area, a vital watershed, and its direct connection to Waters of the United States (WOTUS) flowing into Drayton Harbor. This decision would align with the precedent set by the de-annexation of Grandis Pond due to similar environmental concerns.
- Condition Future UGA Land Swap on Demonstrated Compliance: Any future Urban Growth Area (UGA) land swap or expansion for Blaine must be explicitly conditioned upon the City demonstrating a clear, sustained, and verifiable record of full compliance with all state and county environmental and land use regulations. This includes addressing historical violations, such as those related to NPDES permits and treaty obligations, and proving a consistent commitment to responsible environmental stewardship.
By implementing these recommendations, Whatcom County can ensure that its Comprehensive Plan effectively guides growth in a manner that protects the long-term environmental health of Drayton Harbor, its associated watersheds, and the broader regional ecosystem, thereby upholding its responsibilities under the GMA, SMA, and other pertinent environmental statutes.
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