Between East and West
Wednesday, February 1, 2017
BETWEEN EAST AND WEST: State lawmakers promised a “legislative fix” for a series of recent policy and law reversals that restrict the abilities of counties to issue building permits before they determine whether water is legally available.
In October, the state Supreme Court ruled that Whatcom County failed to protect water resources by allowing new wells to reduce flow in streams for fish and other uses. In its Hirst decision, the court said counties must ensure, independently of the state, that water is physically and legally available before they issue building permits in certain areas.
Two competing bills have emerged this session in response to Hirst, and they are illustrative not only in substance but in the style of the two competing political parties in Olympia, as different from one another as the eastern portion of the state is from the western region.
One bill sponsored by Sen. Judy Warnick—a Republican from Moses Lake—amends parts of the state law at the heart of the Hirst ruling. County officials, builders, business and farm groups are among those supporting the measure, while environmental groups and tribes oppose it.
The competing bill sponsored by Sen. John McCoy, Democrat representing the 38th District north of Seattle, supports the court decision and sets up a program to help counties find ways to meet the financial requirements imposed by the ruling.
In other words, the Republican response intends to redefine the problem to permit as business-as-usual, while Democrats search for a durable technocratic solution. One approach treats the solution as easy and cheap; the other suggests there will be costs and imagines mechanisms to address those costs.
“We face a situation where people in rural areas who don’t have the luxury of hooking up to city water now have very few options,” Warnick said in a statement, noting many people rely on wells that previously were not an issue.
She said her measure, Senate Bill 5239, supports development in rural areas. It would allow counties to rely on state water rules, as they did before the Hirst decision, and ensure that so-called permit-exempt wells can be used for development.
Water is a “finite resource, and therefore we all need to work together to protect that resource,” McCoy said. “I don’t feel that anyone wants to injure anyone’s water right or seniority in this process, but we need to get to common ground.”
His proposal, Senate Bill 5024, allows counties to set up a program to offset water that otherwise would be withdrawn from a well. The county could, for example, create a “water bank” where people who need water obtain it from those who have water rights.
The bill would give counties five years to come up with alternative ways to get water; meanwhile, people in the program could get a certificate allowing them to build.
For Whatcom County, it is a problem 30 years in the making; and one that may well take 30 years to unwind. Redefining the problem creates no resource to replenish those lost through poor planning and land-use management.
In 1985, the state Dept. of Ecology adopted an instream resources protection rule for the Nooksack watershed. Because of longstanding water shortages, the rule closed most watersheds to new withdrawals, either year-round or seasonally, and established instream flows. As Ecology wrote to Whatcom County Executive Jack Louws in November, 2016, “instream flows have not been met on average 142 days per year.” Ecology has further concluded that “most water in the Nooksack watershed is legally spoken for.”
“Water shortages will increase as Whatcom County’s population grows,” notes Jean Melious, the attorney who described the Hirst in arguments before the Supreme Court in 2015. “Climate change will also exacerbate the county’s water shortages, simultaneously reducing water supply while increasing water needs for farm irrigation, home landscape watering, and wildlife habitat. Nonetheless, Whatcom County has poured tax dollars into litigation intended to ignore and deny the County’s water shortage. The county has argued, all the way to the state Supreme Court, that it has a ‘paper’ solution to water shortages. Instead of adopting the good planning and water conservation practices that would stretch its limited water resources, the county contended that it had the right to ignore water shortages in its rural planning. The county’s response to decades of water shortages was simply to require senior water rights holders to donate their water to new water users relying on permit-exempt wells.”
As far back as 1945, the state Legislature decreed that when “the withdrawal of groundwater may affect the flow of any spring, water course, lake, or other body of surface water, the right of an appropriator and owner of surface water shall be superior to any subsequent right hereby authorized to be acquired in or to groundwater.” For more than 70 years, state law has recognized that new wells take water away from rivers and lakes.
“When that happens, the state law of prior appropriation, or ‘first in time, first in right’ applies,” Melious explained. If surface water users have ‘senior, or preexisting, water rights, ‘junior’ wells cannot legally take their water away. This is straight out of Water Law 101, and it has been part of state law since 1945.”
The high court ruling affirms Whatcom County has all the authority it needs to ensure that we can accommodate new growth and ensure that senior water users do not have to donate their water rights and to keep healthy river flows. To its credit, the county is supporting studies that will provide additional information on groundwater supplies. Melious notes the county can also implement water banking, like other water-stressed areas of the state, to provide mitigation for permit applicants caught up in the County’s denial of the reality of water shortages. The county’s own planning and development regulations could be improved. The county has the authority to adopt measures to increase water conservation and to reduce the negative effects of impervious surfaces on groundwater recharge and instream flows.
“It may be easier to change the law,” Melious argues. “But changing the law will hurt farmers with legal water rights who want to keep farming. It will hurt Whatcom County’s 326 public water associations that already lack legal water rights. It will hurt fish and wildlife. It will hurt future generations. Let us not allow the county to take the path of greatest harm, even if it is the path of least resistance. Whatcom County should follow state water law by planning to ensure that water is legally available to new water users.”