Eric Hirst guest writes. We appreciate his expert perspective on this important local issue.
Elisabeth Britt, in a NW Citizen article on Nov 25, argues that Whatcom County made a mistake in its response to an October decision from the Washington Supreme Court. The county adopted an emergency moratorium on accepting new applications for rural wells. Britt urges the county to end that moratorium.
The Court ordered Whatcom County to comply with state law in the Growth Management Act (GMA), which requires counties to coordinate land-use planning with water-resource planning. Specifically, the court and GMA require counties to ensure that water is both legally and physically available before allowing people to build homes that would use water from permit-exempt wells. These requirements are eminently sensible, indeed obvious.
In response to the court decision, the county temporarily stopped accepting new applications for rural wells. It has introduced an interim ordinance, which would be effective for six months. The reasons for addressing the court decision immediately are clear:
- The county’s actions comply with state law,
- These actions respect the physical reality of limited, even scarce water supplies. As Ms Britt notes, “Whatcom County has a history of ‘over-appropriation’ in a number of basins.” This means that there is insufficient water, especially during the summer, to support healthy stocks of salmon and other fish. Sadly, salmon runs are a tiny fraction (less than 5 – 10%) of what they were decades ago. Granting permits where water is not available would undercut tribal treaty rights and worsen conditions for salmon.
- The interim actions provide time for county staff to develop workable, reasonable solutions. The county does not face the binary choice of either allowing new users to take water from senior users, as before, or stopping all rural development. It has many other options. County staff needs a few months to identify and explore these options, discuss them with the public, and then present them to the County Council for approval. Here are a few options that come to mind:
- identify where each parcel is
- consider the effects of outdoor water use during the summer months and determine whether conservation measures can help reduce water use in areas of scarcity,
- limit the amount of impervious surface to increase infiltration of rainwater into the ground,
- promote installation of high efficiency water-use fixtures and equipment,
- provide greater knowledge of water use by implementing metering as other areas, such as Kittitas and Dungeness Counties have done to ensure that junior water users are not taking water from senior water users.
Under Washington’s Constitution, the county does not have the authority to ignore state law and give away senior water rights, including in-stream flows protected under the Dept. of Ecology’s 1985 In-stream Flow Rule. Such action would violate state law and degrade scenic and recreational resources in the Nooksack River and its tributaries.
What might happen if the county accepted Ms Britt’s advice and failed to adopt the interim ordinance? The nascent effort to find reasonable solutions would stop, the lawsuits would resume, and those who are granted building permits would live in constant fear that the courts would rescind those permits as outside the law. Looking back, the county’s taxpayers have already spent several hundred thousand dollars during the past few years litigating this issue. We should focus limited taxpayer money on solutions, not litigation.
We need to apply reason and creativity to the search for solutions that work for rural property owners, respect senior water rights, protect fish and other environmental values, and meet state law.
Full explanation of chart.
This chart illustrates the key water-supply problem Whatcom County faces: not enough water to support salmon in the summer. The blue bars show the percentage of days, averaged over 30 years, that the Dept. of Ecology’s Nooksack River in-stream flow rule has NOT been met. Compliance is worst from July through October, when over 50% of the days have flows below those set in the rule. The yellow bars show the percentage of deficit, or the actual flow relative to the rule, for those days when the rule is not met. October is the worst, with an average deficit of 40% (i.e., the actual flows are 40% below the levels specified in the rule).