Timing is everything, and no where is this more evident than in Whatcom County’s water supply and demand problems. We have a surplus of water in the winter months when demand is the lowest, while the supply of water dries up in the warmer summer months when the demand is highest.
This is a problem requiring comprehensive water planning, but according to local resident, attorney and WWU professor Jean Melious, that is exactly what we are lacking. Armed with an impressive mound of evidence, the result of countless hours of research, Jean (who represents several local clients, including myself) was able to convince the Washington State Growth Management Hearings Board that Whatcom County was failing to protect rural character because it did not have plans in place that protect water quality and water quantity.
The Hearings Board decision has generated attention locally, and around the state, because of its potential impacts on exempt wells. This accounted for a diverse standing-room only crowd attending the lecture given by Jean this Thursday afternoon at WWU. The lecture was attended by students, faculty, government staff, environmentalists, and Tea Party members. Jean’s lecture focused on uncontroversial basics of science and law.
She emphasized that state law was largely controlling over the matter of water rights, leaving little local autonomy over water allocation issues. Most water basins in Whatcom County are closed to new withdrawals, either full time, or seasonally, during the high demand and low supply summer months. Washington follows a “first in right, first in time” rule, entitling those with senior water rights to use water before those who hold junior water rights.
Washington water laws impact both surface water and ground water. Surface water may be in the form of water withdrawal, or in the form of “in stream flows,” which is the obligation to keep water in the stream at a sufficient quantity to protect fish and habitat. Many local streams rely upon groundwater to maintain water flow, particularly in the summer. This reflects the generally shallow groundwater reservoirs in Whatcom County. And where surface water and ground water are in hydraulic continuity, a likely situation where there are shallow reservoirs, groundwater withdrawal could be restricted to protect senior surface water rights.
Traditionally, this was not something that rural residents worried about because Washington State provides for ground well exemptions. However, the exemption is from obtaining a permit. It is not an exemption from water priority rights. And the Hearings Board noted that this was as true for exempt wells as for other types of ground water. This challenges assumptions by some that exempt wells provide a special type of protected water right.
This decision could have a big impact on Whatcom County, where 2/3 of our farmers lack the legal right to the water they use for irrigation and other crop needs. Although there is potential for an additional 34,000 lots in the rural county, before accounting for new growth that could be allocated as part of the 2016 Comprehensive Plan update, the county has failed to engage in water planning efforts for the last 13 years.
The county may no longer plan for rural growth as if water quality and quantity are of little concern. Instead, the county must allocate its water to meet current and future needs. The Hearings Board noted a number of ways that the county could achieve this goal. It could limit growth in areas with water limitation. It could direct growth from rural areas back to the urban areas. It could reduce density or the intensity of water use activities. It could limit impervious surface to maximize stream recharge, impose low impact development standards and/or water conservation efforts. And it could develop mitigation options.
These types of smart growth techniques would reduce the possibility of restrictions on exempt wells. Moreover, even if this were to occur, it would affect only new exempt wells, while existing exempt wells would not be impacted. This has not prevented some amount of hysteria from the Tea Party, which claims that rural property owners will be stripped of water, leaving property of little use and value.
Planning for our future requires moving beyond invalid fears, determining our water supply based on the principles of sound science, and drafting a plan that complies with the state’s legal requirements. Jean, her clients and concerned county residents will be monitoring this process closely to make sure the county gets it right.