The County Council has asked the state Legislature to pay for a three-year pilot project that could address a state Supreme Court mandate that Whatcom County ensure new permit-exempt wells don’t hurt minimum stream flows and senior water rights.
The idea came from County Councilman Rud Browne. The council voted Dec. 6 to ask the state for money, although no specific amount was requested.
Members are asking for state dollars because the controversial Supreme Court decision, which grew from a legal challenge against Whatcom County, affects the rest of Washington state as well.
“This is a statewide problem; it’s not a Whatcom County problem,” Browne said. “We just happen to be at the front line of it.”
The system – which includes software, water tanks, water meters – would allow homeowners in rural Whatcom County taking part in the pilot to seasonally store water during the wet winter months to offset the impact of their use in drier months. It would cost a little over $16,000 for a four-person household.
“The idea is not rocket science. It’s a little bit of plumbing and a very small amount of computer software,” Browne said of his proposal, which he hopes will be taken up in the legislative session that begins Jan. 9.
Searching for a solution
The state Supreme Court ruled on Oct. 6 that the county had failed to protect water resources as required by the Growth Management Act. The court said the county – not the state Department of Ecology, as had been the case previously – must make sure, before approving a new permit, that there was enough water in streams for fish and those holding senior water rights.
In response, the county on Dec. 6 extended for three months a moratorium on new building permits for landowners who had planned to pull groundwater from their permit-exempt wells for home use.
Whatcom County also has asked the state for a legislative fix.
Permit-exempt wells are those in which property owners don’t need a water right for withdrawals as long as they use less than 5,000 gallons of water a day.
About 8,000 developable lots in Whatcom County rely on such wells, the county has estimated.
Affected rural landowners are angry and frustrated because they can’t build their homes without access to drinking water.
Browne said he understood concerns over the environmental impact, but forcing the county to stop issuing building permits for such rural parcels was a “horrible way to deal with this.”
“I agree the problem exists. This is the wrong way to solve the problem,” Browne said. “The burden falls on individuals, many of whom are young families who have invested everything they have.”
So Browne, pulling on his business background that included 30 years in the computer industry, created a proposal he hopes would be a solution – not only for what is known as the Hirst decision, but previous rulings over water use that legally constrain what Whatcom County can do.
‘In kind, in time, in place’
One was the Supreme Court’s ruling in 2015, known as the Foster decision, that mitigating for water use must be done “in kind, in time, in place.”
Browne’s proposal focused on repeated arguments made by property owners to the County Council. One was the county has plenty of water.
“That’s true, in the winter,” Browne said. “It’s not true in summer time.”
The second was that most of the water – about 80 percent to 90 percent, based on Ecology estimates – used indoor by rural homeowners goes back into the ground through a home’s septic system and back into the groundwater, after it has been treated and filtered through the soil.
Browne used a Whatcom County Health Department calculation of indoor water use to get to 260 gallons a day for a family of four and picked the 80 percent figure for what would go back into the ground via a drain field to conclude that 52 gallons a day would need to be mitigated, for a net consumption of zero.
“So what you pull out of the ground, you put back into the ground exactly the same amount” and at the same place and time, Browne said.
A computer would calculate every 24 hours the amount of water that would need to be mitigated. The water used for mitigation could come from a number of sources, including stormwater from driveways and other surfaces, rainwater and surplus water in the winter.
The system would include two 5,000-gallon water tanks, oversight from a central computer managed by Ecology or the county, and meters to measure the water coming in and going out.
“Because it’s got three meters on it, you can mitigate your use in the same place at the same time with actual water, and that’s what’s different,” Browne said.
He said people he had talked with believe the system would work. The concern is over whether it would satisfy the Supreme Court.
“It physically does the mitigation. That’s not the problem,” Browne said. “It’s a legal question. The uncertainty is about the legal test, not about the functional test.”
In addition to asking the state to pay for the pilot, he also requested that Whatcom County property owners who wanted to take part be allowed to build.
“I want it to be an immediate relief,” Browne said. “If you’re willing to help the community work through this issue, then I think the state should pick up the cost of developing the technology.”