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Updatd: County Council May Try End Run on State Legislature

By On

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.

Yellow notice online now - click link at bottom of article
Yellow notice online now - click link at bottom of article

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.

About Elisabeth Britt

Contributor • Member since Mar 23, 2009

Before becoming a citizen journalist, Elisabeth Britt worked in Olympia as a legislative aide. Locally, she served on the WRIA 1 Planning Unit, the Coordinated Water System Plan and as a [...]

Comments by Readers

g.h.kirsch

Jan 29, 2018

Our gentle editor invites us to “be the judge .” He suggests Mr. Hirst and Ms. Britt are both right. Now that would be an unusual conclusion for a judge.  One is pro environment, the other pro growth.

Ms. Britt takes umbrage with county officials who she characterizes as making an “end run” around a new law from the states legislative branch that is an end run around  the decisions of that branch of state government that is the last word on state law.

The so called “Hirst Fix” will not stand when it reaches the state Supreme Court.  The court has ruled at least twice. In Hirst of course, but earlier in a case brought by the Swinomish tribe against Ecology to protect the Skagit.  (The latter decision forced the legislature to exempt Skagit county from the “fix”) 

I think the Whatcom council would do those they represent a service by looking past this futile effort by the legislature  to circumvent the law.  With so many rulings for the environment already hanging over Washington citizens’ heads (have you read the Culvert Case ?) does it make sense to keep kicking this can down the road ?

Though the “fix” may be in for now, it’s much more difficult to buy the court than a bunch of legislators   

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David Camp

Jan 30, 2018

The long-term solution requires reservoir water storage during wet season and releases during the dry. Homeowners could “buy” releases from the reservoir to counteract their own net water “usage” in the summer. Here’s how it could work -  Require for all new wells: 1) wellhead water meters and 2) a contract with a reservoir owner to offset net metered water usage with water releases. 

How many gravel pits are there in the County? Line one or two of them and fill them up in the winter - and release water in the dry season accordng to client metered net water “usage”. It could be a private thing - or a water district-type setup. 

I have a friend who has a solar-powered well that pumps into a 1500 gallon reservoir which gravity-feeds his house- which he claims holds at least a week’s water requirements for a family of three. That’s just over 200 gallons a day. All that but a small evaporated amount is put right back into the groundwater via his septic system. So what’s his net use? Say 10% or 20 gallons a day? Even if he used 2000 gallons a day bathing every hour his net use would be say 200 gallons a day. Assuming this would result in an offsetable draw half the time means a total of 36,500 gallons of water storage would be required to offset this usage. This is a trivial amount to be made up from a release from a reservoir of two acres averaging ten ft deep - holding  20 acre-feet which is over 6.5 million gallons. This would hold enough water to offset  the net water usage of  178 homes. 

It could even be a proftable method of remediating a gravel pit and turning it onto an income asset as water storage. 

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Elisabeth Britt

Jan 31, 2018

Greg,

In a nutshell, the Washington Supreme Court does not write laws. It interprets them.

FYI: the Washington State Legislature does have the legal authority to “fix” a Supreme Court Decision by drafting and adopting legislation to specifically address issues raised by the court in a particular decision. That is what the legislature has done in ESSB 6091. 

You can read more about the division of duties of the state legislature and the court in the Washington State Constitution. 

Thank you for your addtional accusations regarding my motives regarding the articles I write about water.  I see no reason to respond to what is obviously just another Ad Hominem  attack.  

 

 

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g.h.kirsch

Feb 01, 2018

Thank you for the link, but please understand, I’m conversant with most of the issues regarding the separations of power .

Though the legislature is empowered to create legislation, the Law is  the result of the whole process of government; particularly the judicial. 

I fear you have persolized my criticism of our present political culture.  Not my intent.  I appreciate your advocacy, even where I disagree.  

Please, can’t we have an exchange non hominem? 

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Elisabeth Britt

Feb 02, 2018

The legislature adopted ESSB 6091 to counter the Hirst Decision.  I’m not a member of the legislature. So, I didn’t get to cast a vote. I’m just reporting on the steps the legislature took to counter the Supreme Court Hirst decision. 

I ocasionally write articles that  reflect our current political and social economic culture.  I’m a citizen journalist. 

I suppose someone could come along and file yet another legal challenge to stop rural property owners from drilling a permit-exempt well. However, I would prefer that the state and county spend our hard-earned tax dollars on completing groundwater studies that will enable the county to make informed decisions about future water allocation in WRIA 1.  We have already thrown hundreds of thousands of dollars away defending the county against legal challenges. 

Spending too much time focused on a single component of watershed management leads to imbalance throughout the system. We need an integrated holistic water resources management plan that ensures that all users (including fish) have access to the water they need to thrive. There is nothing radical or “wise use” about my personal position. Nor am I a supporter of the “wise use” movement. If you want to have a non ad hominem exchange - you need to stop labeling me “this or that.”  Especially labels that imply that I have ties  to movements that I have never been involved with.   

If you want a copy of my resume - which includes all the government, quasi-government and non-profit boards I’ve been involved with over the last 30 years. Please let me know.  You might be surprised by what you read. 

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Ryan Knowlton

Feb 04, 2018

David, I like the idea regarding the gravel pits. Many of them are filling up with water as we speak. I know when they started digging them deeper, many people complained that it affected the water table and had to drill their wells deeper to stay in water. With many of the pits now having reached their yardage limits and having been shut down, this is certainly viable, and the opportunities go beyond just supplying water. There is opportinities for WDFW to plant fish, using the “ramps” for boat launches (electric or paddle only of course),  and offering additional recreation for those wanting to fish, rowboat, or kayak. 

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David Camp

Feb 05, 2018

@Ryan - yup. It could be a win-win-win-win - more winter water storage for release during the dry season, rehabilitation of gravel pits, potential recreational uses, even aquaculture. Too many lawyers involved in this - they make money by continuing the unresolved “issues” rather than developing solutions. We need more engineers, hydrologists, and, dare I make an ethnic comment, more Dutch and Fries people with generational water knowledge to work on this issue. Shouldn;t we consult a  culture that farms primarily below sea level and which has this as a saying: “If you don’t want to build dikes, you can go away”.  (this is a rough translation from the Fries which I think has a bit stronger version of “you can go away”!)

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Bill McCallum

Feb 14, 2018

 

Correcting a technical error.

The Whatcom County Council passed Emergency Ordinance 2018-001 (not 2018-057) at the January 30, 2018 meeting. That vote repealed Ordinance 2017-057 (not an emergency ordinance) passed at the October 10, 2017 meeting.

 

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Elisabeth Britt

Feb 15, 2018

Thanks, Bill. 

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