Water rights decision bogs down water rights on wells

originally published March 2017—

Perry Eskridge | Executive Officer and Government Affairs Director
Whatcom County Association of REALTORS®

“Whiskey’s for drinkin’, water’s for fightin’.” – Mark Twain

The Washington Supreme Court upended established water law several months ago with the October 6, 2016 decision in Hirst vs. Whatcom County.  Prior to the decision, water appropriation was the sole purview of the Washington Department of Ecology.

The Court sided with the four petitioners, including Bellingham resident Eric Hirst, an engineer and environmental activist, and David Stalheim, City of Bellingham Block Grant Manager. The decision deemed that counties would be required to make independent findings of water quality and quantity before allowing construction in rural areas.

Hirst began as a challenge before the state Growth Management Hearings Board (GMHB), alleging that Whatcom County violated the Growth Management Act prohibition against urban sprawl by permitting construction of residences in rural areas utilizing “exempt wells.”  Petitioners asserted that the County was required to determine the legal and physical availability of water, independent of the Washington Department of Ecology’s (DOE) rule on exempt wells, and regulate building in the rural county accordingly.

The result turned into months of political strategizing while landowners, many who have invested thousands of dollars in their land, are left in the lurch.

At issue is the Nooksack Rule, a rule adopted by the DOE requiring a certain volume of water to remain in the Nooksack River to maintain environmental and aesthetic values.  Because the Nooksack River has less volume in some months (July-Sept.) than is determined as necessary by the DOE, many of the tributaries and watersheds feeding the Nooksack are closed for new surface water appropriations during parts of the year, whereas others are closed year-round.

The Nooksack Rule, however, did not impact the ability to secure water from an exempt well, i.e., a well limited to 5,000 gallons of water each day used for domestic purposes.

The County Council has passed an ordinance allowing people to utilize exempt wells to secure a building permit in the Samish River Watershed, Point Roberts, and on Lummi and Eliza Islands.  In the other parts of Whatcom County, however, you will need documentation demonstrating that you have a source of potable water  and that such water is available by:

1. A water right from DOE;
2. A water purveyor stating that they will provide you water;
3. Or a rain water catchment system.

If you wish to use an exempt well, other requirements include a hydrologic study and a mitigation plan.

Beyond the local political resolution, which remains almost as cumbersome as the permitting process itself, myriad bills are wending through the legislature. Legislators have introduced more than a dozen bills seeking to address the problems caused by the Hirst decision, with “solutions” ranging from water banking, “trust” water rights, cisterns, and even trucked water.

Only a few bills, including Senate Bill 5239 sponsored by Senator Warnick (R-13th Leg. Dist.; Ellensburg) seeks to return Washington water law to pre-Hirst status.  But, as Terry Anderson noted in the Wall St. Journal in 1983, “The fight will continue as long as water is allocated by politics instead of the market.”

So, was Whatcom County the casualty of the water fight?  It should be noted that several members of the current County Council did appropriate the funds necessary to defend this unfortunate lawsuit.  But a prior Council had the opportunity to resolve this issue many years ago.

The 1998 Washington State Watershed Management Act created Water Resource Inventory Areas (WRIAs), with the Nooksack River basin designated WRIA 1.  The initiating governments (Whatcom County, City of Bellingham, Lummi Nation, Nooksack Tribe, Public Utility District 1) utilized the statutory framework to create the WRIA Planning Unit – 16 “caucuses” representing various groups with an interest in resolving water issues within the Nooksack basin.

The Planning Unit, with the initiating governments acting as the administrative arm, commissioned work by the United States Geological Survey and Utah State University with the goal of developing a decision support system to model and predict future water use impacts on water quality, quantity, instream flows, and fish habitats.  After spending millions of dollars, the project stalled and the Planning Unit stopped meeting; the initiating governments continued to work on fish habitat issues.

Although a management and an implementation plan exist, critical work remains unfunded and unfinished today.  Instead, work that has apparently proved too expensive and almost impossible for five of the largest water rights holders in Whatcom County to achieve has instead been foisted off on individual property owners to prove before obtaining a building permit.

So while individual families are left to worry about water, the Whatcom County Health Department takes the opportunity to open a new front in the battle: on-site septic systems. County residents will recall the fight waged by rural families to avoid expensive septic system inspections requested by the Health Department.  The result of a months-long battle was that individuals with simpler septic systems would be allowed to conduct their own inspections, but anyone observing the process could tell that Whatcom County Health was not pleased.

The Supreme Court noted that the GMHB found that the septic self-inspection regimen did not adequately protect groundwater resources.

The County initially defended the evidence concerning water quality on the basis that the evidence was “overgeneralized” and that the largest threat to groundwater resources is surface stormwater runoff. Now, the Health Department has abandoned that argument and, instead, reversed a policy it never supported.

While the Health Department has not explained or attempted to determine the reasons for “disparate inspection results” between homeowner and professional inspectors, stakeholders hope that the County Council will investigate further and not rely on the Health Department’s bare assertions.

The Washington Growth Management Act requires counties to include a rural element.  That element must, according to specific findings of the legislature:

• “Help preserve rural-based economies and traditional rural lifestyles;
• Encourage the economic prosperity of rural residents;
• “Foster opportunities for small-scale, rural-based employment and self-employment;
• “Permit the operation of rural-based agricultural, commercial, recreational, and tourist businesses that are consistent with existing and planned land use patterns;
• “Be compatible with the use of the land by wildlife and for fish and wildlife habitat;
• “Foster the private stewardship of the land and preservation of open space
• “And enhance the rural sense of community and quality of life.”

Recent decisions by the Growth Management Hearings Board, bolstered by recent court decisions, are making the rural lifestyle a thing of the past.  Rather than protecting that lifestyle as the legislature has decreed, overzealous litigants and sympathetic judges have worked to dismantle that protection piece-by-piece.

I think I need a drink!