Interim Ordinance on Rural Water Wells is Essential

Eric Hirst responds to Elisabeth Britt’s article about the legal and physical issues of our rural Whatcom County water wells for homes, farms and businesses.

Eric Hirst responds to Elisabeth Britt’s article about the legal and physical issues of our rural Whatcom County water wells for homes, farms and businesses.


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).

About Eric Hirst

Citizen Journalist • 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 18 years ago. He [...]

Comments by Readers

Wynne Lee

Dec 04, 2016

A temporary moratorium is totally appropriate.  During that time, serious work should be done to figure out reasonable solutions, with all stateholders seriously included in the process (county, Ecology, Hirst et al, property owners, tribes etc).

A big reason to support the moratorium,  as anyone with a shred of knowledge of history surely knows, are the “Gold Rushes” that happen whenever there’s the slightest chance that rules might change. Those ‘rushes’ lock in old, inappropriate patterns that make real progress to changed circumstances extremely difficult or even impossible. That’s neither good nor necessary.

This all has been coming down for years. Those who just now are, shall we say, ‘extremely vocal’ about how a 6-month moratorium will ruin them and their property rights, I say “phooey.” Obviously they’ve long had the choice of selling their property, subdividing it, drilling wells, etc - or not. They chose to wait. They bet that Whatcom County would continue being a Happy Scofflaw re: water issues and prevail in the Supreme Court. No one forced a single property to make that bet. They lost.  No one forced them not to sell, subdivide, build on, develop or drill wells on their property.  I take umbraage at all their whining and hysterics now. I think it’s deplorable to see so many property owners refusing to take full personal responsibility for their choices, not to mention expecting that Daddy Government will cave in and give ‘em anything they want, regardless of the harm it’s already done, is doing and will in the future.   No one likes to lose, but most people had a long, long, looooong time to do whatever they wanted under the old rules. 

The time for whining is over, the time for intelligent work to determine how to ensure our County’s long-term water supply has come.  I hope everyone can work together to solve the many problems we face.


Elisabeth Britt

Dec 04, 2016

Here’s the flaw in Mr. Hirst’s assertion that the initial moratorium and the proposed temporary ordinance are “just temporary.”  While we have made great strides with watershed planning in WRIA 1, we do not yet have a ground water model that will allow Whatcom County to make informed decisions about the impact of groundwater withdrawals on surface water, (with the exception of a handful of drainage basins) in order  to make informed decisions about water availability. Without essential groundwater flow data, the county will not be able to determine if water is available in the majority of basins.  Hence, if a building permit is approved in one of the drainages that we do not have good data for, the permit can be challenged by an organization or neighbor, on the grounds that there is not enough data to support the decision. Here’s the rub. A property owner will be forced to hire an approved hydrologist; who, may or may not be able to conduct a robust water availability determination study, because the data doesn’t exist that would allow the county to determine if an exempt well would have an adverse impact on a nearby stream or other body of surface water.  Remember, neither the GMHB nor the court entered a decision of invalidity on our current Comp Plan. Which means the county could have continued to process building permit applications while it updated the Comprehensive Plan. In fact, Sam Ryan,  the Whatcom County Director of Planning and Development posted a letter stating that Planning and Development  would continue to process building permits, unless the county council directed them to do otherwise.  Here’s the rub. The county is going to be sued, no matter what decision they make.  Why? Because the county (with the exception of a handful of basins with detailed data) can’t prove or disprove that drilling an exempt well will have an adverse effect on nearby surface water in the majority of basins in WRIA 1. 


Wynne Lee

Dec 06, 2016

Excellent short history of Whatcom County water rights and water management, from our very own Notorious Jean Melius. Thanks, Jean.

Decades of doing the wrong things does not justify continuing to do the wrong things and pretending its ok. That’s like someone with emphysema saying, “gee, I smoked all those cigarettes in the past and it wrecked my lungs but by cracky I’m going keep smoking AND pollute everyone else’s lungs near me. It’s My Right.” 


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