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.