Response to Hirst Ruling

December 6 2016

Whatcom County Council
311 Grand Ave
Bellingham WA 98225

Re:  Proposed Interim Ordinance in Response to “Hirst Ruling”; Agenda Bill 2016 – 309 A

Dear Council Members: 

On behalf of our member households and businesses, I am submitting this testimony on the draft ordinance, which will replace the emergency moratorium ordinance passed October 25 2016. We are a county wide public interest group affiliated with the larger regional CAPR organization, with many county based chapters and hundreds of members in our state and California. 

Our mission is to maintain respect for our constitutionally guaranteed civil liberties on property, and to achieve restoration where already damaged, mainly by over-regulation at all levels of government. To this end, we are working for a system of rules on property that is reasonable, clear, without conflicts among regulations, and actually accomplishes their necessary legitimate public purposes, including reasonable levels of protection of resources and environmental quality, including genuine fish habitat. 

We do appreciate that the Council recognizes that this blanket moratorium on the use of new and existing wells for new land use and building permit applications is highly unfair and likely to be extremely costly to impacted rural residents and taxpaying landowners. 

We also appreciate the strenuous, drawn out and costly efforts by the Council to challenge the ill-advised and extreme June 7 2013 Hearing Board decision that has led to the present crisis for many citizens. We were an active participant in this process, submitting a two page letter to the Council January 27 2014. 

Many others, more expert than I, have stated the several reasons why this order, now “the law of the state” thanks to some activists on the state Supreme Court, is not consistent with either our state’s statutory or case law, or the “best available science” relative to the pertinent facts. 

For more detail, please refer to the attached factual and well written Joint Statement by the Washington State Assn. of Counties, Washington Farm Bureau, and Washington Realtors, and Building Industry Assn. of Washington et al, issued December 2 2016. 

The following statements are our chapter’s general position on the Supreme County decision, and our local government’s and the Legislature’s efforts to find a fair and workable solution, both short and long term. 

1. The financial burden of disproving hydraulic continuity between new (and unused) exempt wells and nearby streams or lakes will be normally be too great for the majority of land owners and businesses, including farms. The results of such studies will often be uncertain, and subject to costly and drawn out legal challenge by parties who see themselves being potentially damaged. See proposal below for obtaining more comprehensive current data on stream flow.

2. The geology, soils and sub-surface hydrology of most of the western Whatcom County lowlands are very complex, and vary considerably over short distances, eg 100 yards. 
Assessing ground water levels, quantities and flow patterns on this wide scale will be extremely costly, slow, and lack certainty. 

It will be a far more efficient and productive use of public resources to document and analyze flow patterns on perennial streams (minimum flows are not adopted for either intermittent (seasonal) or ephemeral streams). See the next  item. 

3. There is insufficient quantitative information available even today in the Whatcom lowlands, and some other areas of the state, for reliable scientific analysis of potential hydrologic links between wells and perennial streams. Per the current US Geological Survey website, there are only 15 active stream flow gauge stations in the Nooksack basin; and only 5 on lowland tributaries, not including Ten Mile Creek, one of the largest drainages. 

If the county and we want DoE to continue having the duty to manage and protect perennial stream flows, then we need to support state level funding of more gauges and analysis of the results.  This will be costly, but need not be done in all basins in the state, where population density is low, and/or physical conditions are not so complex.

4. The “one molecule” positive standard for hydraulic continuity, adopted by the state Supreme Court, is blatant “political science”, and not based on a rational scientific method. Science is a process, not an arbitrary rule. 

Also, the method used by the Dept. of Ecology (DoE) in the 1980s to set local minimum stream flows for the Nooksack basin was arbitrary, not even based on the best available science then. See the Joint Statement cited above for detail. 

5. The Dept. of Ecology (DoE) acknowledges that amending state law on water on exempt wells and stream flows is now necessary to allow a reasonable level of rural and farm land use where otherwise appropriate, due to Hirst and other recent, similar rulings (Foster, Postema etc). 

6. About 80% or more of the water used in rural homes on exempt wells infiltrates back into the aquifer from septic systems. A 2015 DoE report estimates that such wells use less than one % of all state water use per a year, ground and surface. The comparable value for Whatcom County is 0.7%, less than 0.001% of the adopted minimum flow for the Nooksack River.   . 

7. We believe persons who have already invested substantial sums of money, eg $500 or more, in building permit and plat applications for land uses allowed by zoning, including required studies, which will rely on an exempt well, should be allowed to complete the application process. Please avoid a more complex approach on this, the process is already complicated enough! This idea may seem too simple, but we doubt if very many people will be able to use it. 

8. Some alternative solutions such as water banking, pipeline extensions, trucking and/or meters will be extremely costly and not feasible in many low density rural areas. 

We understand that state water banking rules are very complex, eg, can only be done in a single drainage, such as a small one like Deer Creek. This is a piecemeal way to mitigate. 

Trucking will also be very costly. Residents will have to install and maintain large on-site storage tanks, and possibly complex pump systems. 

Some public water providers in rural areas are charging very high “share” prices, eg up to $15,000, and then demanding that the customer pay to extend large, 8 inch, mains hundreds or thousands of feet, plus meters! 

Frankly, we have the impression that some who propose these costly and/or complex alternatives either haven’t considered the costs and complexity seriously, or don’t care!   
In conclusion, we have provided 8 comments and recommendations on this issue. We ask that you take some time to consider them, and the mitigation proposals carefully before adopting them, even on an interim basis. Thank you all for considering our statements. We are always available for questions, discussions etc. 

for Whatcom Chapter, Citizens’ Alliance for Property Rights

Roger Almskaar, President

cc:     County Executive
         Planning Department

February 8, 2017