A majority of the current Whatcom County Council agreed to appeal a recent ruling that would make building rural homes more difficult, if not impossible, as property-rights advocates have said.
With two progressives replacing two incumbent conservatives on the council next month, the balance of power has tipped, and the future of that appeal is uncertain.
The ruling, handed down by the state Growth Management Hearings Board in June, was triggered after four citizens challenged the county's rules intended to protect water quantity and quality. Eric Hirst, Laura Leigh Brakke, Wendy Harris and David Stalheim filed a petition with the board, arguing the county rules weren't doing enough to safeguard water.
County and state officials continued to allow new wells after a 1985 law closed certain streams to new water uses. The law requires a minimum flow in the Nooksack River and its tributaries for the benefit of threatened chinook salmon and other wildlife, and for river navigation and recreation. The Nooksack is below the minimum flow 100 days a year on average, according to the state Department of Ecology.
The state and county position has been that home wells, which are exempt from the requirement to apply for a water right, are also exempt from the 1985 restrictions. The result has been thousands of new wells in closed basins, with no knowledge of how they are affecting stream levels.
The four who are challenging the county rules want officials to start planning responsibly, said Jean Melious, the attorney who represents them.
"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," Melious has said.
"There's a lot of fear-mongering about how this will wipe everybody out," Melious added. "What it would do is to require new development to show that water is available."
The Hearings Board said the county is violating state law because rural landowners applying for building permits aren't required to prove that a new well wouldn't draw down ecologically sensitive streams. Kris Halterman, who has a show on KGMI-AM and helps run the conservative political action committee Save Whatcom, said "proving a negative" would be virtually impossible, and rural development would be halted.
"Without the access to water, (the land is) valueless," she said.
Some conservatives said they got a hint at a possible council retreat on the appeal on Dec. 10, when Ken Mann and Carl Weimer - two progressive incumbents who also won in the November election - voted against paying a Seattle law firm an additional $10,000 to bring the appeal to the state Court of Appeals. The added cost to the county's contract with Van Ness Feldman GordonDerr brought the total to $100,000 so far.
Council member Sam Crawford asked Weimer and Mann on Dec. 10 whether they intended to pull out of the court case after newcomers and fellow progressives Rud Browne and Barry Buchanan are sworn in next month.
Weimer and Mann didn't have a ready answer. Weimer only said he had advised Browne and Buchanan to speak with county attorneys to get up to speed on the case.
Mann brushed off the question.
"I don't have any idea what's going to happen with the next council," Mann said, adding that the appeal was an "adversarial money pit."
"We don't always have to run straight to court every time we disagree with our constituents," Mann said. "I have advocated from the beginning, let's talk to them and try to work this out."
Buchanan said he was still studying the case and couldn't comment on it. Browne said he wouldn't comment because he hadn't yet discussed it with county attorneys or the citizens who brought the initial challenge.
Weimer said in an interview on Dec. 23 that he, like Mann, wanted to pursue negotiations with the citizens challenging the county. He said he expects the council's stance on the appeal to change, in part because he and Mann disapprove of the money paid to the Seattle law firm.
"I think that's going to be an issue," Weimer said of the legal expense. "I think we need to wrap our heads around those appeals."
Halterman said she and others are concerned the new council will abandon the appeal.
"There is a very huge concern about that," she said.
"We must raise a level of awareness around the county to ensure that the people will demand that our county government will see this case through from start to finish," Halterman wrote in an email promoting her radio shows on the topic of rural wells.
Weimer and Mann said conservatives are overstating the magnitude of the issue.
"I think it's an overreaction," Mann said in an interview on Dec. 23. "I don't think the litigants have any agenda to eliminate exempt wells."
Melious said her clients have always been interested in negotiating with the county. But she didn't say anything conciliatory when asked if her clients would be willing to allow new wells.
"I've been hearing a lot of folks saying that there is no water problem in Whatcom County," Melious wrote in an email on Dec. 23. "If they're right, proving legal availability won't be a problem."
County officials expect the appeal, if pursued, would reach the state Supreme Court. The high court has ruled recently in favor of greater restrictions on well use.
The court ordered Kittitas County in 2011 to close a loophole in its subdivision regulations that allowed developers to drill wells for groups of homes without a water right. In October 2013 the Supreme Court struck down a state rule that allowed wells in Skagit River basins where water use was restricted for the benefit of salmon.
Reach Ralph Schwartz at email@example.com or 360-715-2289. Read his Politics blog at bellinghamherald.com/politics-blog or get updates on Twitter at @bhampolitics.
Reach RALPH SCHWARTZ at firstname.lastname@example.org or call 715-2298.