OLYMPIA — The Washington Supreme Court’s ruling in Whatcom County vs. Hirst could shut down rural homebuilding statewide, a lobbyist for farm groups and other water users said Dec. 1 at a House hearing.
“The more I listen to people discuss the Hirst case, the more convinced I am that there will be no growth in the rural area unless we solve the problem,” said Kathleen Collins of the Washington Water Policy Alliance, whose members include irrigators, businesses and cities.
“This is a big deal for all rural counties including Pacific County,” said Tim Crose, director of the county’s Department of Community Development.
The House Agriculture and Local Government committees held a joint hearing to learn more about the October decision, in which the court ruled that new domestic wells can’t impair existing water rights, including river flows.
Previously, domestic wells, which account for 1 percent of water use, were exempt from such review.
Many bills related to the ruling are likely to be introduced during the 2017 session.
Some groups, including the Washington Farm Bureau, hope lawmakers will blunt the decision. Although the ruling does not threaten to curtail irrigation water rights, the Farm Bureau condemned the decision for effectively prohibiting new homes for farm families.
Environmental groups signaled they will defend the thrust of the ruling. The groups are influential in the House, where Democrats hold a majority of seats.
“Obviously, we have to get agreement with the environmental side. I hope that’s possible,” Collins said after the hearing.
In the Hirst case, the environmental group Futurewise and others challenged Whatcom County and the state Department of Ecology (DOE). Both agencies said new wells in the county would not harm water resources.
The court, however, ruled that small withdrawals of groundwater add up and deprive rivers of water for fish, wildlife and scenery.
The ruling means prospective homeowners may have to finance expensive studies to prove their wells won’t harm existing water rights. In some watersheds, water rights include minimum river flows set in previous decades by DOE. Critics say the flow standards are too high and create an artificial scarcity of water.
The court decision creates the possibility of problems even in very rainy Pacific County, Pacific County’s DCD director said Monday.
“We do not have in-stream flow issues but we do have ag producers and entities with senior water rights,” Crose said. “If every landowner is required to provide a geotechnical report in order to place a private well on their property, this could be devastating. The way I understand the ruling is that an applicant for a well must prove they are not taking one molecule of water that is allotted to a senior water right holder or stream tagged by DOE as having instream flow issues.”
Proving a new well won’t intercept or draw water from a river may range from hard to impossible. Hydrologists say that groundwater and surface waters are connected.
“Water withdrawn from groundwater does impact surface water and therefore senior water rights,” U.S. Geological Service hydrologist Matt Bachmann told House members.
“That impact is commonly too small to measure for a small domestic well, but it is not too small to measure cumulatively if you look at all domestic wells in a basin,” he said.
County officials throughout the state are weighing what the decision will mean, both in terms of adding an additional regulatory hurdle for would-be homebuilders and added workload for already overburdened agency staff.
“This ruling has taken well exemptions away from DOE and placed a heavy burden on counties to regulate private wells,” Crose said. The ruling is tied to state growth management rules that require proof of water quantity and quality in order to obtain a building permit, he said. “Proving quantity without infringing on senior water rights or in-stream flows is the issue,” Crose said.
The court decision doesn’t, however, create an immediate problem in Pacific County. The county’s current Comprehensive Plan — including water-well provisions — has been approved by the state Department of Commerce and the Growth Management Hearings Board. But, “we are scheduled to start the update our current Comp Plan in 2017 and wells will have to be addressed,” Crose said. He said he hopes that before then the Legislature will move the responsibility back to DOE.
Environmental lobbyist Bruce Wishart said new wells could still be drilled in places where unused water rights could be purchased.
“If nothing else, there’s a final option. You can avoid impacts altogether by using a cistern, with rainwater collection or trucked-in water,” he said.
Rep. Derek Stanford, D-Bothell, said the Supreme Court ruling safeguards existing water users. “We’re trying to protect the senior rights holders, as we have done consistently,” he said.
Collins, however, faulted the Supreme Court for placing stream flows above other uses for water.
“They have lost that sense of balance. They are not looking at out-of-stream needs and how you accommodate those,” she said.
She said that not everybody wants to or can live in a city. “There is an economic force out there that requires people to live in rural areas,” she said.
—Additional reporting by the Chinook Observer