Regulatory Uncertainty, Water Rights, and Housing: An object lesson begun in Whatcom County

The Associated Press reports that a state Supreme Court decision has created a vacuum where certainty is required. 

As counties across Washington respond to a far-reaching state Supreme Court decision involving water rights, angry and frustrated property owners are finding they cannot depend on groundwater wells to build new homes as they have in the past.

In October, the court sided with four residents and the group Futurewise who argued that Whatcom County failed to protect water resources by allowing new wells to reduce flow in streams for fish and other uses. The court said counties must independently ensure water is legally available before granting new building permits.

The ensuing fallout creates problems for both the regulators and the regulated.

“We have counties all across the state trying to figure out what’s the answer going to be at the permit counter when someone comes to build their home,” Laura Berg with the Washington State Association of Counties told lawmakers this month. “They are also interpreting it differently.”

As always, there are direct consequences for people who find the rules changed after they got into the game. Here’s just one of several examples from the AP story.

The changes have upset many, who say it would be too expensive and nearly impossible to meet the new conditions. Many say they have spent thousands of dollars to prepare their lots to build only to discover they now can’t get a permit because they can’t necessarily rely on those wells.

“I can’t do anything with this property. I’m still making payments on it,” said Bud Breakey, who spent $13,000 to dig a well on a 10-acre lot outside Bellingham. “I’ve got all my money and the world wrapped up in this. This is my whole future.”
While we don’t know the details, we recall observations made in our foundation report.

Policies to address climate change and water quality are frequently cited by employers as areas of uncertainty that can affect long-range planning…While regulations ultimately re ect Washingtonians’ policy preferences, they should be regularly reviewed to see if, for example, the bene ts justify the added costs of compliance.

In the Bellingham Herald, Whatcom County executive Jack Louws and Barry Buchanan, chairman of the Whatcom County Council write that the county wants swift resolution.

It is very important to be clear that Whatcom County did not ask to be in this position and this interim ordinance [a moratorium on some development] is in direct response to the Washington State Supreme Court decision. The court decision forces Whatcom County to take over the Department of Ecology responsibility of determining legal water when reviewing and approving new development permits. The decision has led counties throughout the state to be reactive in trying to find the balance between growth management and water-use planning.

They’ll be asking for a legislative fix (outlined in their op-ed). Meanwhile, they write,

We have heard from citizens who are impacted by this court decision. It is a financial and life changing impact particularly for those citizens and their families who are caught mid-project, many with permits nearly in hand whose dreams are on hold but whose financial commitments continue regardless of the ruling. We ask for your patience and understanding as we work with the state and others to find a solution as quickly as we can.

Calls for “patience and understanding” may become quite common in the upcoming legislative session.