Water Water Everywhere, Nor Any Drop to Drink.

Living in Western Washington it’s sometimes hard to believe that water is a scarce resource. In some ways, it’s actually a more delicate balancing act between treaty obligations, development, environment, and agriculture. These often competing interests have lead to a whole body of case law on the subject of water rights, but a recent case took the unprecedented step of injecting the Growth Management Act in to the issue.

Whiskey is for drinking, water is for fighting over.

Late last year the Washington State Supreme Court issued a decision in the case Whatcom County vs. Hirst, Futurewise, et al. commonly referred to simply as Hirst. In it, the court reversed decades of law that says counties can rely on the Department of Ecology to determine water availability.

Neil Caulkins, Chief Civil Deputy Prosecutor for Kittitas County sums up the impact:

In Hirst, the Washington Supreme Court makes clear that it is the responsibility of counties to make the determination of availability, and to demonstrate how they will do this in their comprehensive plans and development regulations. This derives from the GMA provisions at RCW 36.70A.020(10) (“[p]rotect . . . the availability of water”) and RCW 36.70A.070(5)©(iv) (“[p]rotecting . . . surface and groundwater resources”). For purposes of rural development, the key consideration in Hirst (and likely for all counties) is the availability of groundwater for permit exempt wells…

How do water rights work?

The basic rule “first in time, first in right.” It means that when someone acquires a water right, another user cannot come in later and harm that prior use. In many cases, there’s less water than demand, so those rights become quite valuable.

What is an exempt well?

Basically, ignore everything I just said above. Exempt wells were seen as having such a de minimis (negligible) impact on the system, that they need not go through the costly and time consuming process of obtaining a water right.

Indeed, in Washington State, they account for just 1–2% of total water use. However, that number can also vary wildly depending on location. For example, in cities the vast majority of people are served by large municipal systems, community wells, or water districts. In rural areas, exempt wells that serve 1–6 homes, livestock watering, or small industrial uses are the norm.

That’s why the Hirst decision is so important in rural areas, particularly in Pierce County.

Why does this all matter?

Water rights have always been a state matter with the Department of Ecology making the determination. It’s important that counties are able to depend upon Ecology’s determinations. Counties lack the resources and expertise to take over this role.

If we cannot guarantee that an exempt well will not impact in-stream flows in closed basins, we cannot allow a property owner to build.

What’s Pierce County’s Response?

Planning and Land Services issued this statement late last year:

Effective November 1, 2016

In response to a Washington State Supreme Court Decision (Whatcom County v. Hirst), Pierce County Planning and Land Services has established a department policy for building permits and subdivision applications using new permit-exempt wells as their required potable water source.

In general, starting on November 1, 2016, PALS shall determine if a building permits or subdivision has legal water based on the findings of a required hydrogeologic study. PALS shall issue a building permit or subdivision if it is demonstrated that the new permit-exempt well:

• Will not impact or impair a senior water rights holder, and
• Will not impact or impair established instream flows and closures as identified by the State.

Here’s the map of basins that are governed by closures or instream flow rules.

As you can see, most of the county is either closed or has an in-stream flow rule in place. Because these studies can be extremely costly, some are referring to this as a de facto moratorium on construction in these areas.

At a minimum, it requires property owners who wish to add a new water use, whether on an existing well or to a new one, to get a report from a hydrologist confirming that it will not have an impact on in-stream flow. We’re hear that those reports start around $5000 for areas with lots of data available but can reach many times that amount for less studied areas.

The solution

Pierce County and the Washington State Association of Counties are supporting SB 5239, a bill ensuring that water is available to support development.

It would return the rules to a pre-Hirst status and give the Legislature time to come up with more permanent rules, if they see fit, without disrupting rural development.

The bill will be heard in Agriculture, Water, Trade & Economic Development committee tomorrow morning at 8:30. I’ll be there to testify in support on behalf of Pierce County.

Write your legislator in support or comment on the bill directly here. Tell them we need a solution this session.