Whatcom County must make sure there is enough available water before issuing permits for new developments in rural areas, the Washington state Supreme Court ruled Thursday, Oct. 6.
The decision overturned a February 2015 state Court of Appeals ruling, which had favored the county by saying, in effect, that the county did not need stricter rules to regulate water wells on rural properties.
The case has been working its way through the courts since 2013, from a challenge filed by anti-sprawl group Futurewise and four citizens – Eric Hirst, Laura Leigh Brakke, Wendy Harris and David Stalheim.
That was when the County Council appealed a state Growth Management Hearings Board order that the county do a better job with its land-use rules to protect the supply of water in streams and underground, which in turn affects water that is available for other uses such as salmon habitat.
In its June 2013 ruling, the Hearings Board listed several approaches the county could take, including limiting or denying wells in rural areas in the future.
At issue, according to the board, was that the county had allowed so-called exempt wells – meaning a property owner doesn’t need a water right to draw from such a well as long as fewer than 5,000 gallons of water is taken a day – in stream basins that had been closed to new water-rights applications.
Basins were closed to new water rights under a 1985 state rule, called the Nooksack Rule, to protect stream levels and the salmon that live in them.
The county had argued it was meeting a requirement placed on local governments to protect their water resources because the county relied on the state rule, which didn’t apply to exempt wells. The Washington State Department of Ecology agreed with that assessment.
The county said, then, that its comprehensive plan, which guides planning in the county over 20 years, did protect the availability of water as required by the Growth Management Act.
The Supreme Court disagreed with the county’s approach to water allocation.
“This results in the County’s granting building permits for houses and subdivisions to be supplied by a permit-exempt well even if the cumulative effect of exempt wells in a watershed reduces the flow in a water course below the minimum instream flow,” the Supreme Court stated in its majority opinion. “We therefore hold that the County’s comprehensive plan does not satisfy the GMA requirement to protect water availability.”
The Supreme Court then sent the case back to the state Growth Management Hearings Board for the next steps.
Reaction and impact
Jean Melious, the attorney for the four citizens, said the ruling means the county and the Ecology Department will have to work together to determine water availability, not just for what is in the ground but what already might be owned by those with water rights.
“It certainly is high time to start that planning,” Melious said. “We know water issues are going to get more difficult; they’re not going to get easier.”
The County Council will discuss the Supreme Court ruling on Tuesday afternoon, Oct. 11, possibly in a closed session because it’s still considered pending litigation.
The exact impact isn’t known yet, nor what the next steps will be for the county.
Rural residents have long feared the state and county will not allow them to drill new wells on undeveloped lots for future homes in unincorporated Whatcom County.
Perry Eskridge, who handles government affairs for the Whatcom County Association of Realtors, said the ruling was an “extreme disappointment.”
“There was a whole host of organizations that realized the implications from this case, if it went the wrong way, would be immense,” said Eskridge, of the groups that filed arguments in support of the county. “There’s a lot of questions, not many answers.”
County Executive Jack Louws said the county needed a court decision because it was caught between two opposing forces and arguments.
“We’re right in the crossfire between people’s property rights and the traditional view that exempt wells are a permitted and legal way of obtaining water,” he said, “and the responsibility that we have under the GMA to incorporate water quantity and quality within our comp plan.”