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Myths About Rural Residential Wells

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The Washington Supreme Court issued its decision on rural residential wells in October 2016. Since then, there has been a glut of misinformation about what the court said and how Whatcom County should respond. As a litigant in this case, I want to set the record straight, identify the myths, and respond with the facts as clearly as possible.

  • If the Supreme Court decision prevails, won’t that shut down all rural development?

No. The county, with assistance from the Department of Ecology, has many options that would allow some rural development to occur while respecting senior water rights and protecting instream flows. These mitigation options include, among others: limits on impervious surfaces; a requirement that all water-using equipment be high efficiency; limits, or a ban, on outdoor water use; seasonal water storage (collecting water during the winter for aquifer recharge during the summer); connection to an existing water-supply system; and use of markets to allow economically efficient transfers of water. As far as I can tell, the county has made no progress in addressing these and other mitigation strategies.

A brief explanation of senior water rights. Washington water law is first-in-time, first-in-right, which means that when shortages occur, those with senior water rights are protected while those with junior (later in time) rights may not get water.

  • Indoor water use is only about 200 gallons per day, and almost all of that water is returned to the aquifer, how can that be a problem?

Because we have almost no data on actual water use for rural homes, we do not know how much water is used or when. State law allows these homes to use up to 5,000 gallons a day. When multiplied by the many thousands of such wells now in existence and the many thousands that will likely be drilled in the future, the amount of water involved becomes substantial. Also, outdoor water use dominates during the summer and outdoor use is largely consumptive, i.e., about 90% is lost to the atmosphere and not returned to the ground.

  • These homes use very little water. Why pick on them?

To support the claim that the cumulative effect of tens of thousands of rural wells is small, Whatcom County and the Washington Dept. of Ecology would need data on water use. Metering and careful data management would provide that information. Otherwise, this statement is an unfounded assumption. Furthermore, new rural wells in closed watersheds take water from: holders of senior water rights, including farmers; public water districts and associations; and instream flows. These instream flows are needed, especially during the summer, for salmon and other wildlife.

  • Shouldn’t we focus salmon-recovery efforts on larger problems, like culverts and agriculture?

We should address all the water problems facing Whatcom County. Unfortunately, neither the county nor Ecology is doing much to resolve issues such as: a lack of data (metering) for agricultural irrigation, the large amount of water used by some farmers without a water right, removal of culverts, improving water-use efficiency, and so on.

  • What about those unlucky landowners who bought property and were about to file for permits when the court issued its decision?

The county should help those few people who face serious financial problems because of the court decision and, some argue, the county’s unwillingness over many years to address water-supply constraints. Unfortunately, the county has not told the public how many properties fall into this category; nor has the county explained how it defines those who might be eligible. And the county has provided the public no information on mitigation options. It appears the county is relying on the state legislature to fix the problem.

  • Doesn’t a legislative fix make sense?

No. The Senate proposal would undo an important part of the Growth Management Act and undercut 100 years of state water law. In essence, the proposal would allow rural homes to jump to the head of the water-rights line. When droughts occur, those who hold senior water rights would be out of luck. Perhaps more important, the proposed legislation ignores the long-term reality that, absent serious action, our water supply/demand imbalance will get worse. It will worsen as the population grows and the adverse effects of climate change become more dramatic. Already, summer flows in our streams are declining; glaciers are shrinking and melting earlier each year; and summer air temperatures are increasing while summer precipitation is dropping, both of which are factors that increase water use for irrigation.

  • Doesn’t the “one molecule” limit pre-empt mitigation?

No. The Supreme Court decision does not mention the word “molecule.” The court did rule that “groundwater appropriations cannot impede minimum flows,” which means exempt wells cannot be allowed to let instream flows fall below the minimum levels set by Ecology to protect salmon and other wildlife. In areas and at times when stream flows are above the minimum levels, the use of exempt wells is allowed.

In the Hirst Decision, the court determined the Growth Management Act “requires counties to ensure an adequate water supply before granting a building permit or subdivision application.” This is a sensible, logical, reasonable requirement – before allowing development, the county must be sure that the resources needed to support that development, e.g., roads, schools, other public infrastructure, and water, are available.

About Eric Hirst

Contributor • Member since Jul 23, 2015

Eric Hirst has a Ph.D. in engineering from Stanford University, spent 30 years as an energy policy analyst at Oak Ridge National Laboratory, and retired to Bellingham 14 years ago. He [...]

Comments by Readers

David Camp

Mar 28, 2017

Thanks, Eric, for this excellent summary of the issues and who needs to act.

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Elisabeth Britt

Mar 30, 2017

I think it’s time to set up another coffee appointment to discuss this issue in more detail.  I’ve invited Jean, that is, if she is willing to join us. I would like to discuss the Vedder Mountain permit application and the county’s decision regarding their building permit application.

 

 

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Doug Karlberg

Apr 17, 2017

Mr. Hirst, thank you for your writing which is indespensible for many like myself to understand this water issue without reading too much research to come up to speed. Your writting brings me up to speed, easily.

If you do not mind though, I am having a hard time understanding one issue. Maybe you could shed some light. If a household only needs a few hundred gallons of water a day, then why permit them to take 5,000 gallons?

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Eric Hirst

Apr 17, 2017

Doug raises a good question. Why are rural households that use a well allowed, under state law, to use up to 5,000 gallons a day. As Doug points out, most homes use about 200 to 300 gallons per day.

Alas, like much of Washington State water law, this provision makes no sense in our modern world with a growing population and the adverse effects of climate change. Bottom line - I have no sensible answer to Doug’s question. 

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Doug Karlberg

Apr 22, 2017

Thanks Eric. Looks like modernization of our water laws may be in order. Complaining about a lack of water, while handing out residential water permits for 10-20 times more water than a residence requires, and then complain about the lack of water for fish,  seems so illogical as to meet the definition of “arbitrary and capricious”.

This situation where there is literally a freeze on housing construction throughout Whatcom County, except in the cities is effecting the young folks, the poor, and the working working poor harder than any group as Bellingham has been becoming continously unaffordable by any legitimate measure. The County offered far more affordable housing than Bellingham. Bellingham’s last month median price of a house was $380,000. This mediam pprice is a sign of abject failure to produce affordable housing for all economic classes as required by the Growth Management Act. 

“PLANNING GOALS

36.70A .020

Housing. Encourage the availablity of affordable housing to economic segments of the population of the state”

 

Well, if this was Bellingham’s goal, they have failed horribly, as the poor and young are forced due to inability to pay for a house in Bellingham, to have to move into the County and commute into the city. This is forcing people to have to commute to work. This is not only a waste of fuel and externalizes to the County excessive road maintenance, for this additional commute. Both of these outcomes are against the intent of the Growth Management Act.

Now the young and working poor are being forced out of not just Bellingham, but Whatcom County due to making the individual homeowner is now required to prove no impact. Maybe not the intended outcome, but I don’t see any of the Furturewise folks rushing to fix this problem of affordable housing.

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