Subject: FW: Washington Supreme Court hammers rural landowners again
From
Sent: Monday, October 10, 2016 4:56 PM
To: Jack Venrick
Subject: Fw: Washington Supreme Court hammers rural landowners again
Here’s how the Washington Supreme Court ruled on exempt wells
yesterday:
From: Norman MacLeod
Sent: Friday, October 7, 2016 10:31 PM
To: execboard@olysteward.org;
'OSF ADVISORY BOARD'
Subject: Washington Supreme Court hammers rural landowners again
Washington Supreme Court casts doubt on new wells
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Capital
Press
Published
on October 7, 2016 9:13AM
The Washington Supreme Court ruled Thursday that counties must
verify that new domestic wells won’t harm existing water uses, even in rural
areas where the Department of Ecology already has determined that the wells won’t
impair senior water rights.
A business coalition that included the Washington Farm Bureau,
homebuilders and real estate agents had urged the court to rule the other way,
arguing that decisions about allocating water resources should be made at the
state level to avoid a patchwork of local regulations.
The Farm Bureau said it was concerned that its rural members will
be blocked from building homes or farmworker housing.
“It’s clearly a major, major case, and it’s a major disappointment
to the Farm Bureau,” said Evan Sheffels, associate director of governmental
affairs.
“It may make it extremely difficult and extremely expensive for
farmers and rural landowners to build a home in the future,” he said. “It makes
it hard for grandpa to bring a grandkid home to farm.”
The 6-3 ruling in Hirst v. Whatcom County was the latest Supreme
Court decision striking at Ecology’s control of water. The ruling was in line
with previous decisions that overturned new water uses. The court has protected
minimum stream flows established by Ecology, even in cases in which Ecology
created the new water rights.
This case stemmed from a challenge by the environmental group
Futurewise and others to Whatcom County’s policy of allowing new wells for
single-family homes in rural areas.
The county policy was based on Ecology’s 30-year-old Nooksack
Rule, named for the area’s 786-square mile basin.
The rule limits new withdrawals from streams and rivers, but
allows new small groundwater withdrawals.
Writing for the majority, Justice Charles Wiggins wrote that
aquifers and streams are connected and that the Nooksack Rule allowed an
“unchecked reduction of minimum flows.”
The policy also violated the Growth Management Act, which requires
counties to protect surface and groundwater in rural areas, he wrote.
Ecology was not a party to the lawsuit, but filed a brief asking
the court to find that the Nooksack Rule protected the county’s streams and
rivers.
“We’re disappointed the Supreme Court didn’t uphold the Ecology’s
interpretation of the Nooksack Rule,” department spokeswoman Kristin
Johnson-Waggoner said. “We’re assessing the impact of the decision, and we’re
working as fast as we can to determine how it’s going to effect us and people
out there.”
In the dissenting opinion, Justice Debra Stephens said the
majority opinion “imposes impossible burdens on homeowners.”
She cited a recent case that suggested proving that a new well
won’t impair existing water rights would take two years and cost $300,000. She
also said county building departments will have to evaluate hydrogeological
studies. “The practical result of this holding is to stop counties from
granting building permits that rely on permit-exempt wells,” Stephens wrote.
Justice Madsen concurred with the majority, but issued a separate
opinion, urging the state, local governments and tribes to work together to
make water available. “This is not a burden to be shifted onto individual
permit applicants,” she wrote.