Key Concerns

Edward Robison, P.E. S.E.

SB 5239 Won't Work

Edward Robison, P.E., S.E.

The Washington State Supreme Court’s decision in Whatcom County and Hirst versus Western Washington Growth Management Board has caused alarm over using a new well to provide water availability to build a house.

The court ruled that the state's Growth Management Act requires that the impacts of water withdrawals from new wells must be considered when permitting new construction. This is a logical decision based on the need to consider the cumulative impacts of a growing population in the state.There is an interaction between many aquifers and surface waters. The aquifers store the winter rains, releasing to surface waters throughout the year. As more wells are drilled and more ground water extracted, the aquifer level is drawn down, reducing the water released into the surface waters. The water withdrawals are like mosquito bites: a single one may not be noticed; a hundred will be painful and eventually enough will be fatal.

Sen. Angel presents the Hirst decision as a disaster for property owners around the state, creating a new burden killing their dreams. But the state has not suddenly started to regulate water rights; there is a complex history of water rights with convoluted laws and conflicting legal rulings.

Yes, Hirst adds a new burden on those wanting to extract water from an aquifer to demonstrate that there is adequate water to be tapped, whereas before the exempt wells were assumed to be de minimis, too small to warrant concern. But just as with mosquito bites, the cumulative effect becomes significant. The exempt wells have limitations on how the water can be used—how much land may be irrigated, residences served and total amount pumped. With a limit of 5,000 gallons per day pumped from each, 1,000 wells could withdraw 5 million gallons a day. Drill enough wells and the aquifer will go dry.

The hydrogeologic study cost may be substantial and unaffordable to many rural property owners. Is that an excuse to ignore the impacts of adding more wells? All building codes and regulations add costs to construction, but are needed to protect people.

Sen. Angel presents Senate Bill 5239 as a panacea that will address everybody’s worries. Property owners can drill exempt wells with impunity. Sen. Angel is worried about the property owner that might not get to drill a well and thus get no building permit, but has no concern about whether that well will be dry in a few years as new, deeper wells are added and the water table is drawn down. How much of a greater loss will property owners suffer if they rely on SB 5239 and the aquifer goes dry?

The water extracted from the aquifer won’t be spontaneously replaced because of SB 5239. There is no assurance that this change in the law won’t be thrown out because of challenges by holders of superior water rights. These challenges will come because water is a finite resource.

It is prudent and necessary to solve this problem and not merely ignore it until it becomes a disaster as creeks dry up and homes are left with dry wells. Sen. Angel complains about House Democrats not passing the poorly conceived SB 5239 and how it hurts so many people.

Instead, she should support the Department of Ecology in conducting aquifer studies throughout the state to determine how much water is available. Maybe change the law concerning exempt wells, allowing for more people to benefit from the same quantity of water. She could advocate for changing what constitutes water availability. Water use can be greatly reduced using current technology and, when coupled with rainwater capture, storage and reuse, the need for an external water source can be eliminated in much of this state. Any of these actions could help lead to a real and permanent solution.

Bemoaning the fact that the Democratic House majority won’t pass SB 5239 doesn’t help. SB 5239 will not solve the problem with exempt wells, but only invite new legal challenges and greater problems.

Edward Robison is a professional and structural engineer. He lives in Wauna.