The Washington Supreme Court issued its decision on rural residential wells in October 2016. Since then, there has been a glut of misinformation about what the court said and how Whatcom County should respond. As a litigant in this case, I want to set the record straight, identify the myths, and respond with the facts as clearly as possible.
- If the Supreme Court decision prevails, won’t that shut down all rural development?
No. The county, with assistance from the Department of Ecology, has many options that would allow some rural development to occur while respecting senior water rights and protecting instream flows. These mitigation options include, among others: limits on impervious surfaces; a requirement that all water-using equipment be high efficiency; limits, or a ban, on outdoor water use; seasonal water storage (collecting water during the winter for aquifer recharge during the summer); connection to an existing water-supply system; and use of markets to allow economically efficient transfers of water. As far as I can tell, the county has made no progress in addressing these and other mitigation strategies.
A brief explanation of senior water rights. Washington water law is first-in-time, first-in-right, which means that when shortages occur, those with senior water rights are protected while those with junior (later in time) rights may not get water.
- Indoor water use is only about 200 gallons per day, and almost all of that water is returned to the aquifer, how can that be a problem?
Because we have almost no data on actual water use for rural homes, we do not know how much water is used or when. State law allows these homes to use up to 5,000 gallons a day. When multiplied by the many thousands of such wells now in existence and the many thousands that will likely be drilled in the future, the amount of water involved becomes substantial. Also, outdoor water use dominates during the summer and outdoor use is largely consumptive, i.e., about 90% is lost to the atmosphere and not returned to the ground.
- These homes use very little water. Why pick on them?
To support the claim that the cumulative effect of tens of thousands of rural wells is small, Whatcom County and the Washington Dept. of Ecology would need data on water use. Metering and careful data management would provide that information. Otherwise, this statement is an unfounded assumption. Furthermore, new rural wells in closed watersheds take water from: holders of senior water rights, including farmers; public water districts and associations; and instream flows. These instream flows are needed, especially during the summer, for salmon and other wildlife.
- Shouldn’t we focus salmon-recovery efforts on larger problems, like culverts and agriculture?
We should address all the water problems facing Whatcom County. Unfortunately, neither the county nor Ecology is doing much to resolve issues such as: a lack of data (metering) for agricultural irrigation, the large amount of water used by some farmers without a water right, removal of culverts, improving water-use efficiency, and so on.
- What about those unlucky landowners who bought property and were about to file for permits when the court issued its decision?
The county should help those few people who face serious financial problems because of the court decision and, some argue, the county’s unwillingness over many years to address water-supply constraints. Unfortunately, the county has not told the public how many properties fall into this category; nor has the county explained how it defines those who might be eligible. And the county has provided the public no information on mitigation options. It appears the county is relying on the state legislature to fix the problem.
- Doesn’t a legislative fix make sense?
No. The Senate proposal would undo an important part of the Growth Management Act and undercut 100 years of state water law. In essence, the proposal would allow rural homes to jump to the head of the water-rights line. When droughts occur, those who hold senior water rights would be out of luck. Perhaps more important, the proposed legislation ignores the long-term reality that, absent serious action, our water supply/demand imbalance will get worse. It will worsen as the population grows and the adverse effects of climate change become more dramatic. Already, summer flows in our streams are declining; glaciers are shrinking and melting earlier each year; and summer air temperatures are increasing while summer precipitation is dropping, both of which are factors that increase water use for irrigation.
- Doesn’t the “one molecule” limit pre-empt mitigation?
No. The Supreme Court decision does not mention the word “molecule.” The court did rule that “groundwater appropriations cannot impede minimum flows,” which means exempt wells cannot be allowed to let instream flows fall below the minimum levels set by Ecology to protect salmon and other wildlife. In areas and at times when stream flows are above the minimum levels, the use of exempt wells is allowed.
In the Hirst Decision, the court determined the Growth Management Act “requires counties to ensure an adequate water supply before granting a building permit or subdivision application.” This is a sensible, logical, reasonable requirement – before allowing development, the county must be sure that the resources needed to support that development, e.g., roads, schools, other public infrastructure, and water, are available.