Whatcom County wins appeal, doesn’t need to restrict rural wells

Whatcom County does not need stricter rules regulating water wells on rural properties, according to a decision handed down Monday, Feb. 23, by a state Court of Appeals.

County Council brought the appeal after the state Growth Management Hearings Board in 2013 ordered the county to do a better job in its land-use rules of protecting water resources, possibly to include limiting or denying future wells in rural areas.

Monday’s Appeals Court ruling was a complete victory for the county — a victory also perceived to apply to rural property owners.

“This is a very positive outcome for Whatcom County,” said Kris Halterman in an interview on Monday, Feb. 23, after briefly reviewing the Appeals Court’s 47-page decision.

Halterman, through her political action committee Save Whatcom, helped organize rural property owners who filled council chambers in January 2014 to make sure the council followed through with its decision to appeal. The crowd cheered after council voted unanimously to reaffirm its decision.

“There’ll be a lot of very happy rural property owners,” she said on Monday.

The Hearings Board in its June 2013 ruling listed several approaches the county could take to improve its water-resource protections. The brunt of the problem, the board said, was that the county had allowed so-called “exempt” wells in stream basins that had been closed to new water-rights applications.

The wells are called “exempt” because the property owner doesn’t need a water right to draw from a well as long as it takes less than 5,000 gallons of water a day.

Attorney Jean Melious, who represented the four citizens who along with anti-sprawl group Futurewise brought the initial appeal to the Hearings Board, said the Appeals Court’s decision doesn’t eliminate the problem caused by the proliferation of rural wells. More than 1,600 such wells have been drilled in closed basins since 1997, according to the Hearings Board’s decision.

“In terms of population, Whatcom County .... provides for the development of five new Blaines in rural and agricultural areas — mostly relying on exempt wells, and mostly in closed watersheds,” Melious wrote Monday, Feb. 23, in an email to The Bellingham Herald.

Basins were closed to new water rights under a 1985 state rule to protect stream levels and the salmon that live in those streams. The Appeals Court ruled on Monday that the county was meeting a requirement placed on local governments to protect their water resources because the county had fallen back on the state rule to fulfill that requirement. The state rule, while closing certain streams to new water rights, does not limit exempt wells, the Appeals Court ruled.

“Based on our preliminary read, we are very pleased with the court’s decision today,” wrote Tadas Kisielius of Van Ness Feldman GordonDerr, the Seattle law firm the county hired to help with the case. The County Council approved contracts totaling $140,000 to pay the firm.

“Today’s decision is a victory for the county and an endorsement of the county’s cooperative regulatory approach (with the state),” Kisielius wrote.

The comprehensive plan, the document that guides long-range planning in the county over 20 years, is due to be updated by mid-2016. This gives the county an opportunity to fix its water quantity and quality problems, Melious said. Her clients had challenged the county on its protections of both water availability and water quality, but the Court of Appeals sided with the county on both.

“The court’s decision just means that the county won’t be obligated to think about water availability,” Melious wrote. “So it’s all up to the County Council now. It can continue to plan for new development that takes water away from fish and farmers, or it can try to focus new development in cities and in areas that have enough water. We’ll see clearly where the council’s priorities are.”

Council member Ken Mann, after learning about the Appeals Court decision, echoed to some extent Melious’ concerns.

“We expected to win this case, and while it is a relief to have some litigation resolved we still face immense challenges on the issues of water quality and quantity,” Mann wrote in a text message to a reporter. “This lawsuit and (Hearings Board) ruling were misguided attempts to solve very real problems. The complexities of water quality and water quantity require all the different groups working together more than ever.”

Melious couldn’t immediately comment on whether her clients — Eric Hirst, Laura Leigh Brakke, Wendy Harris and David Stalheim — would appeal. The next step for the case would be the state Supreme Court, which would then decide to either take or reject the case.