Water wells surface as Whatcom's biggest controversy

THE BELLINGHAM HERALDNovember 27, 2013 

Conservative property-rights advocates are sounding an alarm over proposed restrictions on wells they fear could mean the end of the rural way of life in Whatcom County.

The well controversy arose after environmentalists challenged Whatcom County rules that they believe don't do enough to protect water resources.

In response to the challenge, the state Growth Management Hearings Board issued a ruling that could block property owners from drawing water from their wells, if the basin where they live is closed to new water rights. The county has appealed the ruling to the state Court of Appeals.

Mike Kent, a Windermere real estate agent, earlier this month devoted his radio show on KGMI to the Hearings Board ruling.

"Some changes took place that could absolutely undermine not just your ability to get the water but could make that land little more than park land," Kent said on Nov. 2 on his program, "Real Estate Radio."

"If this results in those property owners not being able to drill their wells, their land will be rendered of no value because you can't do anything with it," Kent added.

County officials continue to whittle away at a list of rural-growth rules that are out of compliance with state law. According to an order issued Nov. 21 by the Hearings Board, the county resolved five of the nine issues that remain in a drawn-out dispute with environmentalists. But one of the unresolved matters, the water resources controversy, is just heating up.

The county almost certainly will miss a Dec. 4 deadline imposed by the Hearings Board to come into compliance on water resources rules. Hopes of meeting that deadline were dashed when the county Planning Commission abruptly canceled an Oct. 24 public hearing on the water rules.

County officials have asked the Hearings Board for an extension to February. The Planning Commission hearing has been rescheduled for Dec. 12.

The planning commissioners voted unanimously to cancel the October public hearing because they didn't want to undermine the county's appeal. They also thought a decision that would profoundly alter the lives of rural property owners was moving forward without enough public involvement.

"I don't know about you, but I'm on a well," Planning Commissioner Mary Beth Teigrob said on Oct. 24, after she moved to cancel the public hearing. "I know people who have land and expect to be able to drill a well some time, and from what I can see this is going to put an end to that."

What remains unclear in the discussion is whether the typical home well, a so-called "exempt" well, should face the same restrictions placed on water rights.

The state Department of Ecology has been allowing wells on rural land after restrictions on water use were put in place in 1985 to protect salmon habitat. Some basins were closed to new water rights that drew from surface water or groundwater that is connected to streams.

If courts determine wells should be restricted, then development in rural areas could be significantly limited. Even existing wells, because of their "junior" water-right status, could be challenged, said Jean Melious, an attorney representing the four citizens who have petitioned against the county's water rules: Eric Hirst, Laura Leigh Brakke, Wendy Harris and David Stalheim. Also on the petition is the anti-sprawl group Futurewise.

"If no water rights are available from a particular source, such as a closed basin ... junior users can be curtailed," Melious wrote in an email to The Bellingham Herald.

Melious said this has been a component of the state water law for decades. The manager of Ecology's Bellingham office, however, said it's unclear how the law applies to wells.

"It's subject to interpretation whether or not those closures apply to exempt wells or not," said Doug Allen, the Bellingham manager. "The way Ecology has been managing those since the inception of the rule is to allow wells to be drilled.

"Those exemptions are pretty strong. Unless something comes up that is very explicit about putting further restrictions on those, we are very careful about that," Allen added.

Melious wrote on the "Get Whatcom Planning" blog in May that the time is ripe to update the 1980s protections on water resources.

"Times have changed, and not for the better, when it comes to water supply. We still have closed watersheds - and we have thousands of people moving into those closed watersheds and digging wells there," Melious wrote. "We have salmon streams that don't have enough water in them to provide the habitat that salmon need.

"(The county) could figure out where water is available, where it isn't, encourage development in areas where we have water and discourage development in areas where we don't. It could adopt rigorous regulations protecting water quality."

For now, the county is looking for the sort of explicit statement Allen hinted at.

"Let the courts figure this out. We need some direction on that," said Mark Personius, the county's long-range planner.

The Nov. 21 Hearings Board order found the county had achieved compliance with the Growth Management Act by taking the following actions:

-- Allowing no subdivision of most 10-acre lots.

-- Adding more protections to undeveloped portions of clustered lots.

-- Establishing a no-phosphorus rule for new development around Lake Whatcom.

-- Removing large lots from three denser "rural neighborhoods."

-- Not allowing water service from rural transmission lines.

Reach Ralph Schwartz at 360-715-2289 or ralph.schwartz@bellinghamherald.com. Read his Politics Blog at bellinghamherald.com/politics-blog or follow him on Twitter at @bhamheraldpolitics.

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