Water Well Journal
Issue link: http://read.dmtmag.com/i/752472
Washington State Supreme Court Rules Against Rural Water Wells T he Washington State Supreme Court issued a 6-3 ruling on October 7 that could undo Whatcom County's exemp- tion of private wells for new homes in rural areas. In the long-awaited Hirst decision, after years of legal process, the Lynden Tribune reports at issue is the allowance of exempt private wells in the Nooksack River drainage where many sub-basins are closed to new applications for water permits. That exemption, across the state, has been for up to 5000 gallons a day taken for residential purposes. It has allowed homes to continue to be built in rural Whatcom. The county argued it was following the state rule when the case—brought by the anti-sprawl group Futurewise and several citizens—developed in 2013 with the state Growth Management Hearings Board. The case had now been appealed up from a 2015 state Court of Appeals ruling that favored the county. "We reject the county's arguments," the high court says. "The Growth Man- agement Act (GMA) requires counties to ensure an adequate water supply be- fore granting a building permit or subdi- vision application. The county merely follows the Department of Ecology's 'Nooksack Rule'; it assumes there is an adequate supply to provide water for a permit-exempt well unless Ecology has expressly closed that area to permit- exempt appropriations. "This results in the county's granting building permits for houses and subdivi- sions to be supplied by a permit-exempt well even if the cumulative effect of ex- empt wells in a watershed reduces the flow in a water course below the mini- mum in-stream flow. We therefore hold that the county's Comprehensive Plan does not satisfy the GMA requirement to protect water availability and that its remaining arguments are unavailing." State Senator Doug Ericksen said the ruling threatens property users statewide. He plans to introduce a meas- ure in the 2017 legislative session "to fix a major problem in Washington water law" created by the ruling. He said the ruling creates "an artificial water shortage." Water Law Attorney Explains Washington State Supreme Court Ruling Water Well Journal spoke with Peter Scott, a partner with the law firm Gough Shanahan Johnson & Waterman in Bozeman, Montana, and a former hydrogeologist who has authored articles for WWJ. Scott will present an NGWA webinar on this case in late January 2017. Check www.NGWA.org/Events-Education for further webinar details. WWJ: How will this ruling affect water well contractors in Whatcom County? Will it affect contractors working across the state? Peter: It will take some time for the dust to settle. The decision, which imposes a duty upon Whatcom County to determine the physical and legal availability of water before issuing land use approvals requiring water, will have a direct effect on water well contractors in Whatcom County by limiting the future ability of land owners to use private "exempt" wells to appropriate groundwater for devel- opment needs. While the Court's ruling is specific to Whatcom County's compre- hensive land use plan, the holding is applicable to all county's planning under the Growth Management Act and arguably all others as well. Therefore, it is expected to affect water well contractors statewide over time. WWJ: What if a contractor has jobs already scheduled in Whatcom County? How will this ruling affect contractors trying to finish jobs that have signed contracts? Peter: Under Washington State law a project is "vested" when an application is filed, meaning the applicant is entitled to proceed under rules in effect at the time of application. So, assuming the work already scheduled is the subject of an ex- isting application, the job should go forward. Less clear is what counties will do with applications that are filed after the Hirst decision was announced. A number of counties appear inclined to accept applications until their own existing land use rules are amended, which could take many months. Others appear inclined to take a more immediate and proactive approach to implement changes. Spokane County, for example, has already announced applications filed after the Hirst decision is final (20 days after filing unless reconsideration is sought) must comply with the requirement to demonstrate water is physically and legally available. WWJ: How do you see this ruling potentially affecting contractors in neighboring states or across the country? Peter: I expect the ruling to have an effect on contractors regionally. Most west- ern states have a permit exemption for small groundwater withdrawals. Many states are under pressure to repeal or amend those permit exemptions and the Hirst decision will undoubtedly be brought to the attention of legislators being asked to limit use of permit-exempt wells. WWJ: Lastly, what action steps do you recommend for contractors in Washington to take on this cause? Peter: There are several things water well contactors can do. First, read the Court's decision to understand that it directly targets the use of private wells to support development statewide (www.courts.wa.gov/opinions/index.cfm ?fa=opinions.showOpinion&filename=914753MAJ). Next, call your local legislators and demand action. Then, communicate with the state association about proposed legislation and find time to testify in Olympia about the impact this decision is having on their livelihoods. NGWA developed an Information Brief, "Domestic Water Well Exemption in the Western United States." To read it, click on "Information Brief" under the Publications/Bookstore tab at www.NGWA.org. Peter Scott waterwelljournal.com 18 December 2016 WWJ NEWS from page 16