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Who gets the water — landowners or fish?

Zach Nutting and his daughter play with their two dogs in the yard of their current home, just down the road from the lot where they hope to build a new house. Credit: Adiel Kaplan/InvestigateWest

MAPLE FALLS, Whatcom County – Zach Nutting throws a stick. His two big black dogs streak after it into the trees on the five-acre lot he purchased in August. Nutting expected to be building a five-bedroom house here by now. He needs it – a place to accommodate his family, which with a baby due soon is about to outgrow his current two-bedroom house a few miles down the road.

But for now, all he can do is bring the dogs out here.

At least the dogs are happy.

“It’s the one bonus: Our property is now our very, very expensive walking trail for them,” Nutting says.

It’s all because Nutting can’t get permission to drill a water well. Nutting and his family are emblematic of a controversy that has imperiled the plans of thousands of Washington residents to build homes in the countryside and sent state legislators scrambling to help them – possibly by making changes in the Growth Management Act.

A Washington Supreme Court ruling in October held that counties have long violated the growth law by allowing too many unregulated water wells. Those suck up underground water that feeds streams, harming sensitive fish and the environment. Pump too much water from underground, and streams, robbed of the cool and clear underground water, grow hot – the most common violation of Washington’s water quality standards. Sometimes fish die. And that’s just the most obvious of the environmental damage.

But Zach Nutting needs a place to live now. The Little League and basketball coach is squeezing four daughters ages 3 to 9 into a single snug bedroom. His need just grew more acute when the trailer in his yard where his mother had been living caught fire.

The Nuttings are financially too far into the move to pull out. Nutting is a general contractor with his own small business who planned on building the house himself. Back at his current home, an excavator he purchased for the project sits unused in the driveway.

“We can stay here for a little while, but we were bursting at the seams beforehand,” Nutting said. “The kid’s gonna be here in April and we have no idea what we’re going to do.”

When the Nuttings purchased the property in August, the county said they would be able to drill a well. So Nutting sold his current house to his mother, who in turn sold property she had been leasing out. The plan was for his mother to move from her trailer into his current house as soon as he finished building the new one.

Then the Supreme Court ruled. Now the Nuttings can’t build because their new property, like many rural lots, is outside of any established water district. Before the ruling, county officials rubberstamped building permits so long as the person building a house let the state Department of Ecology know a well was being drilled.

The Supreme Court’s decision came down on Oct. 6, 2016. Nutting went to the county office to get his permit on Oct. 8.

“Had I hustled and gotten there three days earlier, this wouldn’t have been a problem,” he said.

Whatcom County is sympathetic. But the county says that its hands are tied.

Technically the Nuttings could get around the building ban by proving their well does not affect local stream levels. But that would cost thousands of dollars or possibly much more for a hydrogeologic study.

The Nuttings have been waiting four months for any sign from the county that they can move forward. Whatcom County, though, is waiting for the state Legislature to act.

Meanwhile, the children and dogs are growing and Nutting’s baby is on the way. The clock is ticking.

What’s in a water right

The Supreme Court’s ruling was about who gets water, which is decided through a system of water rights granted to water users based on how much water is available in an area. A 1945 law connected the quality and quantity of water in streams and rivers to how much groundwater — the underground supply of water — is taken out through nearby wells. That law made a few exceptions. One was for wells drilled by rural landowners that weren’t connected to a water district, creating so-called “permit-exempt” wells.

Washington’s water code, adopted in 1917, works based on seniority. That means water rights granted earlier are considered senior water rights, which are paramount to junior water rights established later. If water levels run low, senior water rights holders get to use what water is available before junior holders. The oldest senior rights are those of Indian tribes. Senior water rights holders also include many farmers and, importantly in recent years, the public to keep water in streams.

Starting in the late 1980s, the Department of Ecology began establishing rules to keep stream levels high enough for local ecosystem health. These “instream flows” established water rights in the name of the public. But enforcing these water rights has been tricky.

For any given river basin, or watershed, Ecology can cut off new permits to withdraw water to keep stream levels healthy for fish and the environment. That’s what the agency did in the Nooksack River watershed in Whatcom County in the 1980s.

Later, realizing how these “permit-exempt” wells can hurt fish, Ecology started taking them into account. But the change followed rules in the Nooksack and many other places.

Translation: Whatcom and other counties spent decades giving the go-ahead for thousands of private property wells without confirming that water was legally available.

The Supreme Court’s October ruling sent counties across the state placing frenzied halts on issuing building permits in affected areas, catching homeowners and developers by surprise. That came nearly a quarter century after an opinion issued by the state attorney general saying even the “permit-exempt” wells needed to be taken into account when planning for future water use.

Despite that opinion by the state’s chief elected interpreter of the law, many counties didn’t do that. Anyone building a home in areas outside water districts had to send a notice to the state saying they were drilling a well. As long as the state was notified, many counties just checked that box.

The result: many thousands of homes were built without any consideration as to whether water was actually available to serve them.

Today, in Whatcom County alone, some 1,000 landowners are trying to get these wells approved. And people have been building such homes since 1945. How many such homes exist? Counties are scrambling now to figure that out. It could well be in the tens of thousands.

The big court case

When lawyers came to Eric Hirst to ask him to lend his name to an effort to legally force Whatcom County to take stock of how the exempt wells are hurting the environment, he said: Sure, why not?

Hirst, an unassuming environmental engineer with a PhD from Stanford and a white beard who retired to Washington to be near family, laughs somewhat nervously as he sits at a Bellingham café. He’s contemplating how the name of his case has become shorthand – infamous to many – in the Washington Legislature.  Whatcom County v. Hirst is well-known among legislators grappling with the problem.

One of the lawyers who worked with Hirst was from Futurewise, the statewide smart-growth nonprofit that has brought legal action against counties across the state. In Whatcom County, Futurewise helped Hirst and other activists bring numerous complaints about water planning and other growth-related matters to the Growth Management Hearings Board in 2009 and 2011. Both times the hearings board ruled in their favor. And Whatcom County began taking action. But not on the “permit-exempt” wells. Whatcom County instead sued the activists that brought the complaint, hoping to overturn the decision.

“How many of these truly heartbreaking stories are there?” Hirst asks. “I would say that’s a pretty big black eye for the county. They don’t even have the most basic information about this.”

Hirst, like Nutting, would like to see the county take some steps to help people who were already in the building process. He argues the county could let those people move forward with the promise the county will find solutions to make up for any water lost to the current set of projects once the law becomes more clear.

But Laura Berg, policy director for the Washington State Association of Counties, says the county can’t do that because it’s not that simple. There’s another court case.

In 2015, the state Supreme Court decided that when water use by cities exceeds acceptable set levels, the gap must be made up for through what Ecology calls “mitigation.” This includes such measures as buying up senior water rights, thereby leaving more water in streams; habitat restoration in streams; and other actions to help fish and the environment and keep more clear, cold water in streams. The court’s decision in Foster vs. Ecology ruled out many previously allowed mitigation alternatives.

Part of the trouble is that the rulings affect every county differently. Ecology only has water-allocation rules for some areas and those areas don’t always match up with county lines. All watersheds are open or closed to new water rights at varying degrees. On top of that, not all counties have plans under the Growth Management Act.

Future Stressors

Whatcom County, like many other counties in the state including Pierce and Snohomish, has granted permits for large numbers of rural wells without planning for water shortages.

But the shortages will come. In the summer months, when water use is highest, they are already here. If stream flows are not high enough, the water is too warm, and fish can’t survive. That puts a strain not just on Washington’s ecosystem, but its multi-billion-dollar fishing industry.

The state has allocated all of its water, if not over-allocated in many areas, such as Western Washington, which means it’s time to start working on ways to better conserve and distribute what it has, says Tim Trohimovich of Futurewise, one of the lawyers who worked on the Hirst case.

“There’s a lot of controversy about the decision because counties have allowed developers to create lots that don’t have legal water,” Trohimovich said.

Meanwhile, the rural building industry is taking a heavy hit. Lexar Homes, a homebuilding company that mostly builds on lots with “permit-exempt” wells and has offices across the state, testified at a Senate hearing two weeks ago.

“People walking in who have purchased a home are now being turned away and saying it’s simply not worth it,” Lexar’s David Danton told the Senate Natural Resources Committee. Builders, contractors and well-drillers are affected along with property owners, he said.

Embodied in SB 5239 is the simplest course of action: Just nullify the Hirst decision and let people keep drilling wells even if all the local water rights already are allocated.

Bad idea, Hirst says. As climate change advances and population increases, water issues are going to become an increasing problem, he says – and the longer the state waits to deal with it, the messier things become.

“It puts a Band-Aid on a problem—a short-term fix that makes the long-term situation much worse,” Hirst said.

Here are some of the other ideas under consideration in the Legislature:

  • HB 1348, which makes instream flow water rights meant to protect fish junior to those of homebuilders.
  • HB 1382, which reverses the situation, assuming “permit-exempt wells” do not affect the environment unless proven otherwise by the local government.
  • SB 5024, which directs counties to establish offset programs for water use from new permit-exempt wells and applicants for those wells to show water is available—enforcing the Supreme Court’s decision, in other words.
  • SB 5239, which excludes new “permit-exempt” wells from the water rights system, effectively making them the most senior water right in the state, while removing the burden of proving water is available from counties back to Ecology’s watershed rules.

The reaction

One of Hirst’s lawyers, Jean Melious, says the counties and Ecology should not have been surprised by the Supreme Court’s ruling.

“None of this is new,” Melious said. “It’s kind of funny the outrage that gets generated over facts that have been in existence for a very long time.”

The Building Industry Association of Washington strongly disagrees. Executive Vice President Art Castle argues that the state Supreme Court rewrote the state law that exempted the wells in question back in the 1940s.

“It essentially eliminates exempt wells in rural areas, affecting anybody who wants to build there,” Castle said.

Berg, from the Association of Counties, says that the Foster ruling decreases Ecology’s authority so much that it prevents the department from helping counties even begin to assist people like Nutting in getting their projects rolling again. Kristin Johnson-Waggoner, the water program communications manager at the Department of Ecology, said Ecology is assisting counties that ask for its help in whatever ways it can.

Whatcom County plans to wait for the Legislature to take action. Now the state faces two problems: the over-allocation of water rights that led to the ruling and a freeze on permitting across multiple counties resulting from the ruling. Fixing both falls to the Legislature. Which is far from consensus. So any decision will take time – time that Nutting and many other affected landowners do not have. Nutting estimates that if he were able to start building his home in the next two weeks, he could finish it just in time for his fifth child to arrive in April.

He’s already marked out a potential spot for his well.

InvestigateWest is a Seattle-based nonprofit newsroom producing journalism for the common good. Please help support this effort at www.invw.org/donate.

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