Updated January 31, 2018
On January 30th, the Whatcom County Council adopted Interim Ordinance 2018-057 - repealing emergency Ordinance 2017-001 (the County moratorium on drilling permit-exempt wells due to the WA Supreme Court’s Hirst Decision); and, adopting amendments to the Whatcom County Comprehensive Plan, Whatcom County Code Title 15, (Buildings and Construction) Title 20, (Zoning) Title 21 ( Land Division Regulations) and Title 24 (Health Code relating to Water Resources). The new Ordinance was adopted with a six to one vote, with Councilmember Todd Donovan voting against the ordinance.
Rural property owners now have 60 days to apply for building permits that require a permit-exempt well as a primary source of domestic water.
Next step: the county council will begin working on a second ordinance to implement the Hirst fix.
Please note that ESSB 6091 has authorized the WRIA 1 Planning Unit to update the Watershed Management Plan over the next twelve months. Planning Unit meetings are open to the public. If you would like to attend a Planning Unit meeting, the next meeting is scheduled on February 14, from 10:00am-12:00pm. It will be held at the Garden Level Room, 322 N. Commercial, Bellingham, WA.
Council member Rudd Browne informed members of the public at Tuesday night’s regular county council meeting that a number of people were posting fake news on social media sites about councilmembers. He asked members of the public to please ask friends on social media to publish links to their sources of information. Browne said, If you do not know the source of the post, please view the public meeting in question to determine for yourselves if the information posted on social media is factual.
In regards to rumors that some council members were contemplating voting no against the ordinance prepared by staff, Council member Donovan stated that he did not believe that the council was given an adequate amount of time to discuss the proposed interim ordinance before being asked to vote on it. He stated that he intended to vote against the ordinance for that reason.
The county council will meet on February 13th, 2018, to consider a six month extension of the temporary rules. A public hearing will be held.
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Original posted Jan 29, 2018
Our County Council appears to be contemplating an end run around the Washington State Legislature’s attempt to find a solution to the Hirst decision on water rights and usage. In the process, it appears ready to override the legitimate role of the planning unit’s responsibility for implementing such measures.
On January 18, 2018, Governor Inslee signed ESSB 6091 into law. 6091 is titled, “An act relating to ensuring that water is available to support development.” In part, it allows new permit-exempt wells to be drilled in Water Resource Inventory Areas (WRIAs) where instream flow rules do not explicitly regulate a permit-exempt groundwater withdrawal. Evidence of an adequate water supply for a building permit must be consistent with the soon-to-be-updated watershed plan process mandated by ESSB 6091 for those WRIAs, unless the applicant provides certain other evidence of an adequate water supply.
Until an updated watershed management plan is completed and new rules have been adopted accordingly, a building permit applicant must pay the permitting authority a fee of $500, of which $350 must be transmitted to the Department of Ecology. They may then obtain approval for a permit-exempt withdrawal for domestic use only, with a maximum annual average withdrawal of 3,000 gallons per day. The $500 dollar fee will be added to the county’s existing fee of $200 for a total fee of $700 to drill a permit-exempt well.
If an updated watershed plan is not adopted in Nooksack’s WRIA 1 by February 1, 2019, the state’s Department of Ecology must adopt rules in WRIA 1 that meets the requirements of ESSB 6091 by August 1, 2020.
Very few rural permit-exempt well owners are going to use 3,000 gallons per day, every single day of the year. But, setting a 2,000-gallon-per-day limit could have a chilling effect on establishing future rural businesses and farms by restricting access to an adequate water supply. Perhaps that isn’t a concern – perhaps the council doesn’t intend to provide future growth opportunities for new rural businesses or farms per the Growth Management Act. Without factually and legally available water for rural growth, we may discover that our traditional rural way of life is also an endangered species.
Most counties, Whatcom County included, lack the financial resources to collect the surface and groundwater data required to make informed water resource allocation decisions. This is the fatal flaw of the Hirst Decision. It requires counties to make water allocation decisions based on scientific data that doesn’t currently exist in Whatcom County. In response, the Whatcom County Council placed a moratorium on building permits for structures that would require a new permit-exempt well as their primary source of water.
After the legislature adopted ESSB 6091, County Executive Jack Louws proposed an emergency ordinance to implement the Water Availability Act. Readers can view the draft ordinance starting on page 219 of the Council’s Agenda Packet for January 30, 2018.
So, why is it inappropriate for the council to attempt an end run around the legislature’s intent?
The legislature authorized the planning unit, not the County Council, to determine two issues. The first issue is whether the maximum withdrawal of 3,000 gallons per day, as authorized under the Water Availability Act, should be reduced. The second is whether, at some point, individual meters should be required on all new permit-exempt wells. Members of the County Council cannot arbitrarily decide how to interpret a statute, or change its interpretation. Here’s why.
In 2005, the Attorney General’s Office issued AGO Opinion 2005 No. 17. The opinion clearly states that an administrative agency may not alter the interpretation of a statute, whether by language or legislative intent, in order to address changed societal conditions.
The AG’s opinion states that the 1945 groundwater statute specifically exempts from permitting requirements the withdrawal of groundwater for watering stock. It also exempts watering lawns and non-commercial gardens of less than one-half acre. In other words, neither the County Council nor the Department of Ecology has the authority to limit the amount of water withdrawn for those purposes. The state’s groundwater code was originally codified as RCW 90.44.
So, why would the council attempt to thwart legislative intent by usurping the authority the legislature entrusted to the WRIA 1 planning unit? I can’t answer that question. Perhaps we will learn more about their motives at the next council meeting.
Editor note: The county council next meets tomorrow, Tuesday, Jan 30 at 7 pm. The “end run” is a council vote on emergency ordinance AB2018-057 which is on the agenda.