A Washington state Supreme Court decision last fall altered the realities for home water wells in rural parts of the state.
One reality is that water resources are finite and cannot be tapped forever as if supplies never run out. Another reality is that without assurances of water, new development is doomed in some remote areas.
In their split ruling in the Hirst case, a majority of six Supreme Court justices agreed that county governments must ensure there is adequate water before handing out building permits for home projects that rely on so-called permit-exempt wells. Whatcom County’s failure to do that was a focal point of the Hirst case.
On its face, the court’s demand that water be legally available is common sense.
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The ruling says that stream flows, existing wells, tribes, farms and other water right holders must not be adversely affected by newcomers tapping into the groundwater with wells. In requiring county building departments to verify that adequate water is available, the Supreme Court linked the duty to the planning requirements of the state Growth Management Act.
But in doing so, the court also imposed large, unprecedented costs on counties and landowners — neither of whom are well-positioned to judge the adequacy of water resources. Owners of rural land could spend thousands of dollars for hydrology tests on their own to prove their case — sometimes fruitlessly — for wells that individually use little water.
Unfortunately, this burden on counties is the opposite of a longtime tradition on water rights.In the past, owners of senior water rights had to file a complaint and argue against a newcomer’s claim for water in places where wells or stream flows were jeopardized by new uses, according to the state Department of Ecology.
Tribes see no need to change the law as interpreted by the court at this time, according to Justin Parker, executive leader of the Northwest Indian Fisheries Commission. But he said tribes want to work with the state and counties to allow sustainable development.
Arnold Cooper, vice chair of the Squaxin Island Tribe near Olympia, wrote in a recent newspaper guest column that the impact of small exempt wells can be significant in small watersheds where hundreds of the wells are dug. He cited Johns Creek in Mason County as an example where a stream flows for a chum salmon run are affected.
But builders groups, representatives of many local governments and other advocates of rural development say that without looser rules for wells development is no longer possible in many rural areas.
It is obvious after a third special legislative session ended last month that a quick solution won’t be found. Unfortunately, Senate Republicans took a $4 billion capital-construction budget hostage until Democrats cave in to their demands to, in effect, overturn the Hirst ruling. That was wrong.
But Republican Sen. Judy Warnick of Moses Lake has negotiated with House Democrats on a possible solution, and she is exploring changes to her proposal, Senate Bill 5239, which includes higher well fees. Both Warnick and Democratic Rep. Larry Springer of Kirkland told The Olympian they are getting back to the bargaining table this week.
Warnick said she intends to reach out to tribes, which is essential. Many tribes have treaty rights to a portion of salmon runs that depend on adequate stream flows.
Springer introduced an alternative, House Bill 2248. Besides creating “water banks” to ensure stream flows, Springer wants to free up the drilling of permit-exempt wells in areas without in-stream limits for two years. During that two-year period he wants the state to develop a long-term state strategy that ensures future building permit decisions are based on accurate water information.
Lawmakers also need to provide Ecology and counties with financial help to develop better data on which to base decisions about new wells. This could take time.
Not all counties are halting development just yet. As Thurston County continues to review the court ruling’s implications, it is still issuing building permits. Since the court ruling last fall it granted about 140 certificates of water availability for projects with exempt wells and another 185 for projects on public water systems, county spokeswoman Meghan Porter said. The county Board of Commissioners has also asked county hydro-geologist Kevin Hansen to gather data “to determine water availability” in order to guide local decisions.
In the end, everyone needs to understand that even in water-friendly Washington the groundwater supply is not endless. The days of ignoring that fact are over.