New Barriers Added By State Supreme Court For Building Homes With Well Water

New Barriers Added By State Supreme Court For Building Homes With Well Water
A recent Washington State Supreme Court ruling will require expensive tests for impact on water supply before new homes using well water can be built in rural areas. Lawmakers, county officials, real estate and agriculture are voicing strong concerns, and corrective legislation is likely to be introduced in 2017. The case originated in Whatcom County, but has statewide impact. Seen here: the Nooksak River Valley. Photo: Jerry McFarland.

In the wake of a recent Washington State Supreme Court ruling, potential homebuilders relying on water from wells would be required to spend tens of thousands of dollars for hydrogeological studies proving compliance with the Growth Management Act (GMA). That’s according to state legislators, realtors, and representatives of county governments and agriculture. Their reaction is to a case which originated in Whatcom County, but has statewide implications.

The Court held that with respect to home sites to be served by wells, Whatcom County’s comprehensive plan does not adequately meet GMA requirements to protect healthy watershed levels, despite following Washington Department of Ecology (DoE) guidelines. This is a reversal from a 2015 Washington Court of Appeals decision, which found the county’s standards passed muster.

According to GMA, Washingtonians cannot build structures relying on water from a well unless they first prove an “adequate water supply.” The DoE allows residents to obtain groundwater permit exemptions, bypassing state-issued water rights, as long as the well draws less than 5,000 gallons of water a day. The Supreme Court determined the county’s allowing of so-called “exempt wells” results in an unregulated reduction in minimum instream flows.

The Appeals Court’s decision reversed a 2013 finding from the state Growth Management Hearings Board that the county’s water supply protections fell short. Bringing the case to the Hearings Board at the outset, and pursuing the case after the appeals court reversal, was the environmental advocacy group Futurewise.

“Their agenda is very much an anti-growth agenda and they don’t want to see development in the rural areas…it certainly is evident that they are trying to push more and more people into the urban core,” State Rep. Luanne Van Werven (R-42) told Lens. She is Assistant Ranking Minority Member of the House State Government Committee.

A Blow To Property Rights

Van Werven calls the decision “erroneous” and a “major blow” to landowners across the state and to the “water-rich” Whatcom County, in particular.

Justice Charles Wiggins authored the majority ruling. Concurring were Justices Mary Yu, Barbara Madsen, Susan Owens, Steven Gonzalez, and Charles Johnson. Dissenting were Justices Mary Fairhurst, Debra Stephens and Sheryl McCloud.

“This is a disaster for property owners and property rights,” wrote State Sen. Doug Ericksen (R-42) in a Facebook post this month. “The ruling establishes a new hurdle for property owners seeking county permits to develop their land – a decision-making process that will cost them a fortune and could take years.” He is Chair of the Senate Energy, Environment and Telecommunications Committee.

Ruling Would Apply In 29 Counties

The implications reach beyond Whatcom County, according to Ericksen, and the decision would apply to “all 29 counties that are required to write comprehensive plans under the state Growth Management Act,” he wrote.

The ruling affects new homes and subdivisions which would rely on well water. Currently, across the state an estimated 13 to 14 percent of the state’s full-time resident population uses a permit-exempt well, according to a DoE source. Approximately 20 percent of Whatcom County residents in 2015 were estimated to be served by private water systems, including exempt wells.

“I think [the ruling] will have a huge impact on how people can use their property and I’m still investigating solutions to that problem,” State Rep. Brian Blake (D-19) told Lens. “I do have real concerns about the decision and the restrictions it is imposing.” He is Chair of the House Agriculture and Natural Resource Committee.

Housing Affordability In Rural Areas Will Suffer

“Affordable housing will be thrown out the window or will not exist in rural areas,” Laura Berg, Policy Director of the Washington State Association of Counties told Lens.

Berg added, “Counties will…be hesitant at looking at permits in water-short areas, to prevent getting sued for not complying with the…decision.”

A major water source for Whatcom County is the Nooksack Watershed, which includes land shared by the Lummi Nation and Nooksack Tribe. DoE is limited in issuing new water rights for the Water Resource Inventory Area (WRIA), but allows use of exempt-wells. This is the only option left for some of the county’s residents, said Perry Eskridge, Government Affairs Director for the Whatcom County Association of Realtors.

A Hit To Counties, Rural Economies

Eskridge said, “now the county is responsible (for) doing research in determining whether or not groundwater is hydrologically connected to surface water,” and what impact “each individual well will have on aquifers as a whole and surface waters and salmon-bearing streams… the money…counties will need to do that, is extraordinary.”

Evan Sheffels, Associate Director of Government Relations at the Washington Farm Bureau, told Lens the decision will hurt agriculture.

“Farmers will be blocked from building homes for their grandkids, for example, or…farmworker housing…something that was free or relatively inexpensive will be extremely expensive to go through, (because of) testing that the court set off,” said Sheffels.

“Let’s say you have money for a five-acre lot and you need to put in a well. It’s not free to do the testing, drill wells, put in pumps…it’s a large outlay. If you add thousands of dollars to do hydrogeological studies… no one can afford to do that,” said Berg.

The Supreme Court remanded the case to the Growth Management Hearing Board for “further proceedings.”

Corrective Legislation Eyed

Ericksen wrote in his Facebook post that he would be introducing legislation in the 2017 session to “fix a major problem in Washington water law,” resulting from the ruling.


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