Lawmakers seek solution to Whatcom County fight over rural water uses

More construction would be possible in Whatcom County and other rural areas if state lawmakers can agree on a way to rewrite Washington’s water law to address a recent Supreme Court ruling critics say keeps families from building their dream homes.

But supporters of the ruling told a legislative committee Tuesday one attempted rewrite doesn’t do enough to make sure all residents will have the water they need.

Although the ruling involved a Whatcom County case, it has statewide implications.

Sen. Judy Warnick, R-Moses Lake, told the House Agriculture and Natural Resource Committee her proposal would “give a green light” to many families with a few acres where they would like to build a house but have to drill a well for water supplies, if there are no existing regulations around in-stream flows. It also won’t stop the state from spending tens of millions of dollars to improve those flows, she said.

The bill would not modify existing water-right regulations the Department of Ecology has implemented in several places, or keep the department from adopting new regulations, Warnick added.

Sen. Doug Ericksen, R-Ferndale, is a co-sponsor of the legislation, Senate bill 5239, which already has passed the Senate.

Last October, a divided state Supreme Court said counties must comply with the Growth Management Act and make an independent decision about whether enough water was available before approving a building permit for a project that needed a new well for water. Before what’s known as the Hirst decision, many counties relied on state Department of Ecology assessments of whether water was available, so well permits were easier to obtain.

The case pitted Whatcom County against the Western Washington Growth Management Hearings Board. The state’s high court ruled the county had failed to protect water resources as required by the Growth Management Act and, before approving a new permit, must make sure there is enough water in streams for fish and those holding senior water rights.

On March 7, the Whatcom County Council extended its restriction on new rural developments that rely on domestic wells for another six weeks. Meanwhile, council members are looking to provide what relief they can to those property owners who already were in the process of building their homes when the Supreme Court’s decision led the council to halt rural developments affected by the ruling.

On Tuesday, more frustrated landowners told the committee they can’t build their family dream homes on property they bought.

Bret Espey of Bellingham said his family bought property in 2015 that is “collateral damage” from the Hirst decision. The land has a well that was drilled but not in use before the ruling and can’t be turned on now.

Groups that represent builders, contractors and farmers all backed some version of Warnick’s bill, arguing the court ruling has shut down needed development around the state.

“Some of us aren’t meant to live in a concrete jungle,” Ingrid Wachtler, president of the Washington State Nursery and Landscape Association, said.

But tribal members and environmentalists argued they’ve been warning about declining water resources for years and any rewrite needs to pay more attention to the cumulative effects of residential wells. Bryce Yadon of FutureWise pointed to a 2013 story by The Spokesman-Review about declining water tables in some areas of Spokane County.

“Water belongs to the people of Washington and should be maintained,” Denise Smith, of the League of Women Voters, said. “It’s a finite resource.”

For some lawmakers, a law addressing the Hirst decision is on the “must-do” list for the 2017 session, second only to satisfying the court’s McCleary order to improve public schools. The committee is expected to vote on Warnick’s bill this week, but will consider two major rewrites of that proposal. Any changes would mean that if the revised bill passes the House it would have to go back to the Senate for another vote.