Whatcom County has temporarily stopped accepting new applications for developments that depend on water from what are known as exempt wells in light of a Thursday, Oct. 6, state Supreme Court ruling against the county.
The court said the county must make sure there was enough available water before issuing permits for such developments in rural areas.
The decision overturned a February 2015 state Court of Appeals ruling, which had favored the county by saying, in effect, that the county didn’t need stricter rules to regulate water wells on rural properties.
The court sent the case back to the Growth Management Hearings Board for the next steps.
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The County Council voted 6-1 late Tuesday, Oct. 25, to enact an emergency moratorium for 60 days, which means county planners won’t be processing new permits during that time for projects that rely on private exempt wells.
County planners said a moratorium would give them more time to work through what the court’s ruling meant for Whatcom County.
“The court’s decision has essentially turned growth management planning and water law on its head from how we understood it just 20 days ago,” Mark Personius, assistant director of Whatcom County Planning and Development Services, said Tuesday.
“We don’t want to just continue accepting and approving permits for legal water availability in an area of unsettled law,” Personius added. “That could subject applicants and permit holders to even more difficulties and uncertainties down the road. That is not prudent.”
Council Member Barbara Brenner was the no vote, saying the council should consider other options, including going back to the Supreme Court.
“We have nothing to lose by asking for a reconsideration,” she said.
But other members weren’t swayed, saying the county needed to show it was working on the next steps or control could be taken out of its hands if the Growth Management Hearings Board invalidates its comprehensive plan, which guides planning in the county over 20 years.
The council essentially agreed with county planners that more time was needed to evaluate what they called a surprising decision by the court and to come up with an interim plan.
“We have to get that pause. We have to figure something out,” Council Member Satpal Sidhu said, even as he equated the situation to picking “which poison you like.”
An interim plan for how the county is going to comply with the Supreme Court ruling is expected to come back before the council within 60 to 90 days.
Most who spoke to the council before its decision urged them to wait for direction from the Growth Management Hearings Board, adding that they already were frustrated by the year or two of work required before they could even apply for a permit.
Among them was landowner Douglas Gonsalves, who asked the council to hold off.
“We are invested in this project financially and emotionally. Now we have the looming threat of our source of water being taken away. I can’t tell you how helpless that makes us feel. We have heard that those with permits may be grandfathered in. But what about those of us that have been working to get that permit for over a year?” Gonsalves said.
“We’ve done everything that we can to move forward with this project,” he added. “People have spoken here about not sleeping at night. Well, that’s me and my wife. We’re asking you for help.”
Speakers also questioned whether there was an emergency that warranted the temporary moratorium, given that the Supreme Court itself didn’t invalidate the county’s comprehensive plan.
Council Member Carl Weimer said the county already was working on water issues on a number of fronts.
The recently completed Coordinated Water System Plan showed there was plenty of water in the county, he said, but the issue was one of doing a better job of distributing it from those with excess water – he referred to the city of Bellingham and Whatcom County Public Utility District No. 1 – via water banking.
The legal fight had 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 exempt wells – meaning a property owner didn’t need a water right to draw from such a well as long as fewer than 5,000 gallons of water weren’t 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 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.”
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.