The Fix Is In
Wednesday, March 1, 2017
THE FIX IS IN: If you hung a sign on a well that was dry most of the year, and that sign read, “Plenty of water! Available year ’round!” would you imagine that the hanging of that sign actually changed the conditions of the well, creating new water where there was none? Or would you imagine the sign represented some kind of cruel fraud, declaring something that just ain’t so?
That’s the essence of Senate Bill 5239, the legislative response to the state Supreme Court’s Hirst decision last fall that found counties (and Whatcom in particular) were planning development heedless of adequate water resource—a requirement for planning under the state’s Growth Management Act. The bill passed out of committee last week, sponsored by Republican Senators Doug Ericksen and Judy Warnick, the latter vice chair of the so-called (but now defunct as a result of November elections) Majority Caucus.
In October, the high court ruled that Whatcom County failed to protect water resources by allowing new wells to reduce flow in streams for fish and other uses. 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.
Taken as a whole, a series of recent Supreme Court decisions represent a firm support of senior water rights over junior and subordinate water rights, and a recognition that the former are harmfully impacted by the latter. And those decisions have made it clear that counties are on the hook for responsible land- and water-use planning.
In response to the rulings, Whatcom County Council temporarily stopped accepting new applications for developments that depend on water from what are known as exempt wells. Council seeks greater clarity from additional review by the state growth board or through a legislative solution from lawmakers in Olympia.
The “legislative fix” sought by county administrators simply declares that water is available to support development by revising the law that was under review in the Hirst opinion to make certain that operative law is not controlled by the Hirst opinion. It would roll back the requirement that counties plan for growth in areas of adequate supply. In other words, the “fix” waves away the problem, magically declaring it ain’t a problem.
A particularly troubling section of SB 5239 actually spells out that instream flows are subordinate in rights to other uses, upending more than a century of water law and an understanding of the ecological function of those stream flows.
“This goes well beyond a legislative fix,” Trish Rolfe testified on behalf of the Center for Environmental Law & Policy (CELP), which opposes the bill.
The bill was heavily supported by the building industry and real estate lobby. It was provisionally supported by the Association of Washington Cities (AWC), whose representative in Olympia admitted that while it offers a solution it does not fix the problem. Ericksen was not available to testify on behalf of his own bill.
A competing bill, SB 5024, sought to determine whether groundwater supply is physically and legally available by directing state resources to the problem, a first step perhaps in creating water banks over which development plans might be laid.
SB 5024 allows for new development to occur in rural areas without adequate water supply provided the authorizing county adopts a mitigation plan. A county is given five years to allow new development before mitigation must be in place. The bill follows models used successfully in Clallam and Kittitas counties, where water banks are actually contributing to steam flows while allowing rural homebuilding to proceed. Unfortunately, that bill, provisionally supported by senior water users, had no financial support in the governor’s budget and stalled in committee.
Of course, as both bills suggest (one more forthrightly than the other) water supply is a problem.
Since 1986, the state Department of Ecology closed most Whatcom County stream basins to new water withdrawals, either year-round or during the dry months. Ecology itself has said that most water in Whatcom County has already been spoken for. Meanwhile, Whatcom County’s Comprehensive Water Resource Plan notes that more than 95 percent of 347 public water systems located in the County rely on groundwater; and approximately 20,000 homes obtain water from exempt wells that draw from that resource.
As noted in testimony in Olympia, the argument that residential well use represents only a fraction of water use is skewed by the fact that agriculture is a gargantuan user of water, estimated at more than 90 percent of total water use in the state. The argument essentially suggests that because the Ag use is a potentially unsolvable problem of mammoth proportions the merely elephantine but perhaps solvable problem of residential use should be ignored.
“Minimum stream flows should be maintained as a public right, and maintained on all streams,” commented Denise Smith, representing the League of Women Voters, told lawmakers in Olympia. Noting their membership includes many residents in rural areas, Smith stressed that SB 5329 “exonerates exempt well owners from any responsibility to the public trust. And this leaves us speechless.”
“We need to address the issue of stream flow mitigation, both for municipal water and permit exempt well uses,” noted Carl Schroeder, representing the AWC. “Neither of the bills fully address this problem.”
One bill offered a facile quick fix without solving any problems, and very likely worsening many other problems. The other bill sought a technocratic solution while admitting the problem is a complicated one and will require money and resources to address. Guess which bill survived in Olympia.