High court’s water ruling harms rural construction

A recent Washington state Supreme Court decision created a financial quagmire for anyone planning to build a new home within at least 29 counties in Washington.

At the heart of the court ruling on Whatcom County v. Western Washington Growth Management Hearings Board (also known as the Hirst decision) is water access in rural communities under the Growth Management Act.

Prior to the case, the Legislature established that up to 5,000 gallons of water per day could be withdrawn from new wells for domestic purposes. If they met the threshold, new wells were exempt from permitting and water right requirements for new homes, among other uses. While the law still exists (as RCW 90.44.050), the Supreme Court decision issued Oct. 6 effectively erases the exemption from the law — and brings the construction of rural homes to a standstill.

The court’s 6-to-3 ruling held that Whatcom County failed to adequately protect ground and surface water resources as required by the GMA when it relied on the Department of Ecology’s determinations of water availability. The case revolves around permit-exempt wells and how they may affect instream flows.

At its core, an instream flow is an optimal water measure for rivers and streams, set by Ecology, and is a senior water right that cannot be impaired by junior rights. Prior to the ruling, Washington counties relied on DOE’s guidance and could allow the wells as an approved water source for new construction except in areas closed to new water withdrawals.

The consequences of the case extend beyond Whatcom County to at least 29 Washington counties, including Thurston, that prepare comprehensive plans under the GMA.

So far, Whatcom County has issued a temporary moratorium on building permits for projects that rely on permit-exempt wells. Spokane County passed an interim ordinance to restrict the building of new homes in the Little Spokane watershed unless it is proved that the instream flow won’t be affected.

Pierce County will require building-permit and subdivision-permit applicants to provide a study from a licensed hydrogeologist that shows the proposed well will not affect senior water rights, including instream flows. Other counties, including Thurston, are still trying to figure out what the decision requires of them.

The Hirst ruling has created a practically impossible compliance order for anyone building a home on rural land.

The way to test for impaired instream flow is to conduct a hydrogeological survey. The price to conduct one survey on one building site can reach hundreds of thousands of dollars, according to the dissenting court opinion. If more than one waterway is near a permit-exempt well, each waterway would likely require its own separate survey.

Small home-builders and those building their own homes on rural land will face insurmountable costs for these assessments. Even then, it may not be enough to gain county approval for a building permit. As it stands, county staff members have discretion to interpret hydrogeological surveys, and those opposed to new housing can appeal any issued building permits.

Conducting one or more surveys for each new housing site will send the costs of building homes skyward — if they are built at all. A lack of new supply coupled with increased demand means that home prices in rural communities will eventually exceed what most buyers can afford.

When this happens, rural areas will experience affordable housing shortages similar to the state’s more populated areas.

The Building Industry Association of Washington represents predominately small business home-builders across the state. In the face of this uncertainty, small builders face an unknown future. They must gamble the financial stability of their businesses and their employees’ livelihoods on expensive surveys that offer no guarantees that homes can eventually be built.

What’s needed for the unprecedented Hirst decision is a legislative fix. It’s important that in 2017 our governor and legislators know that this ruling will cause harm across the state. Without a solid and practical legislative solution and executive leadership, it’s only a matter of time before building or buying a new home outside urban areas will be available only to a wealthy and well-connected few.

Dave Main is president of the Building Industry Association of Washington. The Olympia-based association represents nearly 8,000 members in the state’s home building industry.