Whatcom Council curbs rural building that relies on exempt wells for 3 more months

The Whatcom County Council heard people speak for more than two hours Tuesday night before voting 5-2 to extend a moratorium on new developments that rely on exempt wells in much of Whatcom County for the next three months.
The Whatcom County Council heard people speak for more than two hours Tuesday night before voting 5-2 to extend a moratorium on new developments that rely on exempt wells in much of Whatcom County for the next three months. eabell@bhamherald.com

The County Council is continuing to curb new developments that rely on exempt wells in much of Whatcom County for the next three months, despite pleas from angry property owners.

County officials have said they needed more time to find solutions – and to come into compliance – after the state Supreme Court ruled the county failed to protect water resources as required by the Growth Management Act.

The court said the county must make sure, before approving a new permit, that there was enough water in streams for fish and those holding senior water rights.

The decision overturned a February 2015 state Court of Appeals ruling that had favored the county.

After hearing from the public for 2 1/2 hours Tuesday, the council voted 5-2 to approve the measure. Barbara Brenner and Ken Mann opposed it.

“I am so upset by the position that it has put Whatcom County in and the position it has put people in,” Mann said.

The new measure replaced an existing 60-day moratorium on new building permits that would’ve ended later this month.

The council had initially been considering a temporary ban of six months.

“Exempt wells are not causing the problem. They’ve been scapegoated,” Brenner said.

The county also is hoping, and waiting, for a fix from the Legislature.

Affected land owners who spoke before the council Tuesday urged members to lift instead of expand the moratorium, saying, in part, that water was being used as a tool to curb sprawl and rural property owners were paying the price. They said they didn’t know how the water they pulled from underground through wells could affect what would be available for streams.

One man – Zach Nutting from the Kendall area – kneeled and begged the council to lift the moratorium.

Peter Kingma, from Sumas, said the council should grandfather in those who already were in the process of developing their property, but hadn’t yet received a building permit, to relieve their financial burden.

“I don’t think any court would hold that against you,” Kingma said. “I think fair is fair.”

But other speakers said water availability was an issue – one that the county spent years ignoring – and that there did need to be enough for fish, tribal water rights, and those who hold senior water rights.

On Tuesday, the council also unanimously voted to send a letter to the Legislature to ask that the Growth Management Act be changed to clarify that counties can rely on state Ecology guidance for determining legal water availability, which is what Whatcom County had been doing prior to the Supreme Court ruling.

In the letter, and at the request of Council member Carl Weimer, they also asked that the state adequately fund Ecology so the agency had the resources to provide guidance that was legally defensible.

“The problem is they have not been doing their job for decades. The guidance they have out there doesn’t pass a whole bunch of court decisions that have come down over the last few years,” Weimer said of Ecology. “If we’re relying on stuff that’s not legally defensible, then we’re just kicking the can down the road.”

Lummi and Eliza islands, Point Roberts and the Lake Samish area that’s in Whatcom County aren’t affected by the restrictions because they’re in different water basins.

Property owners in affected areas could build homes under certain conditions allowed by the county, but most said they couldn’t afford measures such as putting in rainwater catchment or hiring a hydrogeologist.

Legal background

The fight that led to the Supreme Court decision 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.

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 property owners didn’t need a water right for withdrawals as long as they used less than 5,000 gallons of water 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 Supreme Court sided with the Growth Management Hearings Board.

“The Board found that these provisions result in water withdrawals from closed basins and senior instream flows – flows that the record indicated drop below the minimum levels 100 days out of the year,” the court ruled. “The Board properly held that this conflicts with the requirement placed on counties to protect water availability under the GMA ...”

Kie Relyea: 360-715-2234, @kierelyea