Court decision is big gain for groundwater protection

Dan Partridge, communications manager, Water Resources Program

Ecology's Maia Bellon

The state Supreme Court has reaffirmed local governments’ obligations to ensure legal groundwater availability when making land use decisions.

In Kittitas County vs. EWGHMB, the court on July 28, 2011, upheld a decision of the Eastern Washington Growth Management Hearings Board that Kittitas County violated the Growth Management Act. The county was not preventing subdivision applicants from using more than one permit-exempt groundwater well per development. Washington allows the drilling of wells without a water right permit provided that groundwater withdrawals are limited to 5,000 gallons per day.

In considering Kittitas County’s appeal of the hearings board decision issued in 2007, the Supreme Court ruled that the county failed to protect groundwater resources by approving side-by-side subdivision proposals allowing developers to evade legal limits on the use of permit-exempt wells.

Protection of existing water rights

“This could come at a great cost to the existing water rights of nearby property owners, even those in adjoining counties, if subdivisions and developments overuse the well permit exemption contrary to law,” the court said in a 6-3 decision.

Kittitas County’s subdivision approvals in the upper county led Ecology to impose a moratorium on new, unmitigated domestic wells in 2009 based on concern the county was allowing wells without regard to the legal availability of water.

Water Resources Program Manager Maia Bellon said counties’ obligations in determining the “legal availability” of water in addition to the “physical availability” of water when making land use decisions is nothing new.

Land-use decisions, water availability linked

“The decision recognizes the critical importance of marrying land-use decision-making with water supply and its availability. Those are and should be inextricably linked,” Maia said in news stories following the ruling.

Program manager just since July 1, Maia is a former assistant state attorney general who has intimate knowledge of Kittitas County vs. EWGMHB. She and AAG Alan Reichman authored the amicus curiae (friend of the court) brief that Ecology submitted in the case.

Ruling recognizes water as finite resource

The ruling also recognizes that water is finite resource that must be carefully considered during land use planning and permitting and after the court decision Maia spoke to reporters of Ecology’s ongoing commitment to assisting counties in making their determinations of “physically available” and “legally available” water.

A link to the Supreme Court decision is available on Ecology’s Web page for the Water Resources Advisory Committee.

---