Passion, pleas prevail as water-access remedies sought

A well driller works on the end cap of a well just drilled. Photo courtesy of Department of Ecology.

By Matt Spaw, WNPA Olympia News Bureau

Some Whatcom County landowners appeared in Olympia last Tuesday to voice opinions on two bills aimed to relieve water access issues in rural Washington.

The bills, SB 5024 and SB 5239, are a response to the Whatcom County v. Hirst Washington State Supreme Court decision, which ruled that counties must determine whether water is legally available before issuing a building permit for properties requiring private wells.

The decision means counties must assess the effects water usage would have on aquifers and streams for fish and other uses. Counties previously relied on what the Department of Ecology (DOE) determined was available water, but the court ruling ruled against that method.

The ruling resulted in temporary permit moratoriums in Whatcom and other counties, and an impassioned plea from one Whatcom County landowner displayed the intensity of the issue for those now affected by the court’s edict. As he was ending his remarks to the Senate Agriculture, Trade, Water and Economic Development Committee, Zach Nutting rose from his chair, stepped aside, then dropped to his knees to seek the committee’s support in resolving the issues.

For Nutting that meant restoring his ability to get a building permit so he could construct his family home on 5 acres near Kendall. He told the committee he had sold his former house and moved onto the acreage to build his new home. After obtaining permits for electricity and other elements related to construction, he was denied a building permit.

“We are technically homeless because we are thousands and thousands (of dollars) into this project. We have septic and electric, but we can’t have our building permit,” Nutting said. “I’m going to get on my knees and beg you to fix this.”

Whatcom County Council passed the county’s current three-month moratorium on building permits for properties relying on exempt wells on December 6. Other counties in the state have also halted permitting following the Hirst decision. Whatcom County Council members approved the moratorium with a 5–2 vote, with Ken Mann and Barbara Brenner opposing.

“I’ve been on the council a long time and I’ve never had an issue depress me as much as this has. I’m very upset about it and it affects a whole lot of people who have played by the rules,” Brenner said in a phone interview. She’s aware of the senate bills, but doesn’t yet have an opinion on them, she said.

Dan Eisses, general manager of the Birch Bay Water and Sewer District said he thought few, if any, properties near Blaine and Birch Bay were affected by the Supreme Court ruling. Blaine and Birch Bay have their own water systems, and the Bell Bay Jackson Water Association serves an area east of Birch Bay.

“I’m sure there’s some impact between Blaine and Lynden, but there’s quite a bit of agricultural property and not as many people trying to build houses there,” Eisses said.

Both bills had supporters and detractors, but SB 5239 received the most passionate support from some who came to testify.

The bills’ sponsors are mostly divided along party lines. Sponsors of SB 5024 are all Democrats, while 11 out of 13 of the sponsors for SB 5239 are Republicans. Senator Lisa Wellman, D-Mercer Island, is the only co-sponsor for both bills.

SB 5024 would allow counties to establish an optional program to mitigate surface water impacts for new permit-exempt groundwater withdrawals, such as home-use wells. Those applying for a well could use county-issued mitigation certificates. These would certify that the county can find water to compensate for water used by the well. The DOE would provide ground and surface water data to county officials developing the programs.

Home-use wells use relatively little water – less than one percent of the state’s total water – according to Senator Jim Honeyford, R-Sunnyside. Exemptions to seeking full water rights include domestic or industrial uses not exceeding 5,000 gallons a day, as well as purposes such as stock watering or lawn care.

SB 5024 would also create a seven-member committee, which would work with counties, tribes, rural property owners, conservation groups and various state agencies. It would submit reports to the state legislature and governor at the beginning of 2018 and 2019 that describe how groundwater availability would integrate with land-use planning.

SB 5239 would allow local jurisdictions to use the DOE’s rules when determining water availability for approving building permits. Counties and cities could also use the department’s rules as part of their comprehensive plans, which are adopted in accordance with the state Growth Management Act. The bill also determines that permit-exempt groundwater withdrawal, usually wells, cannot be deemed to be impairing minimum flow of streams.

David Danton, an operations manager for Lexar Homes, told the committee this problem is widespread. “We’re seeing home sales decline because people are turning away after seeing all the permits they need. These are impacting thousands of people,”

he said.

Others who testified said SB 5239 was a poor solution to water issues. Trish Rolfe, executive director for the Center for Environmental Law and Policy, noted that the bill undermines the basic principles of water law and would prevent the DOE from considering permit-exempt withdrawal as damaging to in-stream flow rules.

“It makes in-stream flows a lesser water right. It will allow permit-exempt wells to irreparably harm fish and wildlife that rely on in-stream flows, including endangered salmon,” Rolfe said.

Dave Christensen, program development manager for the DOE, had problems with both bills. He did not support SB 5024 because of its significant budget impact – $10 million appropriated between June 2017 and 2019 – which is not in the governor’s budget. He also did not support SB 5239 because it gives all permit-exempt users too much freedom from DOE rules.

“We can’t support SB 5239 as written because of the blanket exemptions to all permit-exempt uses. There needs to be adequate protection for in-stream resources,” Christensen said.

Frederick Cardenas, a Spokane resident who developed a well only to find his county was no longer issuing building permits, also spoke. He worked 60 hours a week for seven years to pay for the property.

“I have over $81,000 invested in this well and property. It constitutes the bulk of my wealth, which is now valued at zero,” Cardenas told the committee. He had driven to Olympia from Elk, north of Spokane, to deliver his message in person even though the committee had set up a remote hearing site in Spokane.

Dawn Vyvyan, representing the Puyallup tribe and Yakama nation, expressed her conditional support for SB 5024.

“We like ecology assisting counties and setting up a fund for mitigation. We think mitigation is one of the solutions to finding water,” Vyvyan said. “However, we would like to see the final determinations on water availability be made by the department. The tribe feels the county does not have the expertise to determine if water is available.”

This story is part of a series of news reports from the Washington State Legislature provided through a reporting internship sponsored by the Washington Newspaper Publishers Association Foundation. Reach reporter Matt Spaw at matthewspaw@gmail.com. The Northern Light reporter Oliver Lazenby contributed to this story.