Auld Lang’s Decline
Wednesday, December 21, 2016
AULD LANG’S DECLINE: Not content to sit passively while the state crafts new laws in response to a state Supreme Court decision that removed the exemption from so-called permit-exempt wells in determining water supply for new development (but curiously reluctant to take the next logical step and add planning protocol to assist with that determination), Whatcom County Council earlier this month requested financial assistance for a three-year pilot project to help meter and measure and mitigate water supply for rural residents who rely on wells.
The project, initially proposed by Council member Rud Browne, would employ water tanks, water meters and software to measure use in an effort to seasonally store water during wet winter months to offset their impacts in drier months. The package would cost a little over $16,000 to serve a four-person household.
The concept is predicated on three interlocking ideas—there’s abundant water, but not at the times of year when it is needed for stream flows; residences don’t use very much water, compared to farms and industry; but we don’t really have good data on how much they do use and the extent to which that use recycles to groundwater.
“Whatcom County has an abundance of water, unfortunately while we have more than we need in winter we don’t have enough in summer,” Browne noted in his proposal. “The average gross daily domestic groundwater consumption for residents is estimated to be 65 gallons per day or less. The best available science suggests that between 80 percent and 90 percent of rural groundwater consumed for indoor domestic use is actually returned to the soil through the home’s septic system. The recent ruling requires that any and all consumptive uses must be completely mitigated (drop for drop) and that the mitigation must occur at the time of use.
“This proposal demonstrates how homeowners could store surplus water during the winter and use it to fully mitigate their net consumptive use at other times of the year in a way that would comply with both the new court ruling and the physical constraints imposed by a physically finite water supply.”
Widely applied, Browne’s proposal would place a cistern on every property served by a well in an impaired water basin. The cisterns would be filled during times of plentiful water, and used to recharge aquifers during dry months. Each property would become, in essence, a closed water system, with a target goal of net indoor domestic groundwater consumption approaching zero. And indeed, primitive systems like these are used successfully around the world in climes with limited water supply. Adding technical innovation, software would monitor and gather data about the supply, the use of water in the home, and the conditions of wet and dry that would govern the collection and release of cistern supply.
The county also seeks a legislative fix, “requesting changes to state law to relieve the burden of unworkable judicial water impairment and mitigation standards now in place that don’t give us enough tools to solve the problem, as well as requesting technical and financial assistance from the state to deal with the challenges of providing an adequate public rural water supply,” Council and the administration explained in a recent editorial.
Likely—because the high court ruling affects many more counties than just Whatcom—they will receive some form of legislative relief, and it is always worthwhile to ask the state for more money to respond to duties imposed or enforced by the state.
The ideas are sensible—science is good! money is needed!—but together they reflect the continued great reluctance of the county to take on ultimate responsibility of planning for growth in areas of abundant water supply—the very duty the Court said was the county’s alone in their ruling.
The legislative fix pleads with the state to place someone else (likely Ecology) in control of decisions involving water availability; the cistern fix kicks the responsibility (and presumably the costs) back on the individual homeowner.
“We reject these arguments,” the Court noted in its ruling. “The GMA places an independent responsibility to ensure water availability on counties, not on Ecology” and upheld the earlier determination of a state growth board that “it is the local government—and not Ecology—that is responsible to make the decision on water adequacy as part of its land use decision, and in particular, with respect to exempt wells.”
The county’s long defiance with this issue continues—and mysteriously, given the unambiguous conclusion that determination of adequate water supply properly belongs as part of the overall SEPA checklist the county must perform in granting a permit application for new development. The purpose of the law is to limit sprawl and conversion of resource land, not to sidestep the intent by erecting a net-zero cistern on every property in a dreary buildout of the rural county.
The history of the county’s nonfeasance-turning-malfeasant neglect to “get with the program” is long, dating egregiously back to at least 1993 when the county began an investigation in partnership with Ecology of stream depletion from wells. Around the same time, groundwater studies found increasing concentrations of nitrates in well water, a telltale of depleted and degraded supply.
In 2011, Ecology reported “Most water in the Nooksack watershed is already legally spoken for. Increasing demands for water from ongoing population growth, diminishing surface water supplies, declining groundwater levels in some areas during peak use periods, and the impacts of climate change limit Ecology’s ability to issue new water rights in this watershed” and began closing basins either seasonally or year-round to additional withdrawals. The county ignored this; and worsened it through an upzone.
In 2014, the county had opportunity to actually respond to the petition that would ultimately lead to the Supreme Court case, but decided instead to fight it out—with essentially no legal justification at all, and with courts around the state overturning whatever justification the county invented—hiring attorneys for a sum that might’ve placed a cistern on two dozen rural properties. For their expense, the county got crushed.
Should old lessons be forgot, and never brought to mind?