After a year in limbo, rural landowners have hope after the state Hirst decision fix

By Emily Hamann
The Bellingham Business Journal

Buddy Breakey thought he was buying his piece of the American Dream. He and his wife, Deborah, found a beautiful piece of property in rural Whatcom County, near where her dad built his own house. It was a 10-acre plot covered in huge old cedar trees. They bought the land in 2016, planning to build a home that they would grow old in and pass on to their kids. They had a well drilled and tested, and were getting their application together for their building permit.

Then everything changed.

“Everything I planned and everything I worked for was gone,” Breakey said.

A case started in 2013, Whatcom County vs. Hirst, Futurewise, et. al., went before the Washington Supreme Court. That court issued a ruling, placing new restrictions on how counties can grant permits for new homes in rural areas. Now, more than a year later, the state has passed a measure giving some temporary relief to those landowners. However, there are likely many fights ahead.

At issue was water, or specifically, a lack thereof. In the case, Futurewise, a Seattle-based anti-sprawl activist group, along with four Whatcom County residents, contended that the county’s recent comprehensive plan update violated a provision in the state’s Growth Management Act by allowing for more residential building in the unincorporated county in the coming years. Before allowing for more building, the petitioners argued, the act required that counties make sure there was enough water to support that growth.

The court agreed. In response to the ruling, Whatcom County Council placed an immediate moratorium on issuing new building permits for rural homes that would require getting water from a new well.

The decision left Breakey, and at least dozens of other property owners in the county, in a sudden limbo. A very expensive limbo.

His land was essentially worthless.

“My property went from being valued at $130,000 … to they wouldn’t even approve me for a $10,000 loan against the property,” he said.

He couldn’t get a building permit for his dream house, or anything else, on the property, because that would require pulling water from the well he had already had drilled. And since it wasn’t in use when the decision came down, he couldn’t use it. He looked into other ways of getting water. He was too far away from any water associations, he couldn’t hook up to municipal water, he even researched rainwater catchment — where rainwater that falls on the roof is collected and filtered for domestic use.

“I would have had to build a building the size of a horse arena in order to collect enough water to support my household,” he said.

“You’d have to have at least one acre of completely open land just to put that thing.”

Breakey estimates the roof alone would have cost $70,000. Plus $10,000 for a water tank.

“This is after I spent $13,000 to build a well that is, according to the Hirst decision, completely useless,” he said. Even if he wanted to, he couldn’t get that money. Neither of the banks he talked to would give him a loan on property that was dependant on rainwater catchment for water. The Breakeys were quickly running out of money. They had planned to rent their existing home once they got their new home built. Instead, they were now making payments on two properties — one of which was now unbuildable and worth a fraction of what they paid for it.

“I’d spend the rest of my life paying off something that was worth nothing,” Breakey said. “I had my whole future stolen.”

Now, Breakey and the other landowners in his position have some hope.

In January, the Legislature passed a bill that would allow county landowners to once again start building on their property. Gov. Jay Inslee quickly signed it into law. The bill once again allows counties to do what it had done prior to the court case — use state Department of Ecology guidance on building new wells. Landowners now must pay a new $500 fee for their well. And they can only draw an average of 3,000 gallons of water per day (previously the limit was 5,000).

The Whatcom County Council passed an emergency ordinance echoing the new state law. So landowners with wells can once again be granted building permits.

Windermere real estate agent Mary Kay Robinson has been advocating for those landowners since the Hirst decision first passed. She’s heard of many stories like the Breakeys.

“It’s been really, really disastrous for many, many people in the county,” she said. The new law, she said, is a reasonable compromise while a longer term solution is figured out.

The new limit — 3,000 gallons a day on average, should be a reasonable amount of water for most people living on some acreage.

“What we have today, as far as the law is concerned, is not necessarily what we’ll have down the road,” she said.

This year, while property owners are building their houses, groups of people working on the local watershed management project will study possible long-term solutions. The project is moderated by the county and involves collaboration between tribes, cities, public utility districts, foresters, builders and other interested parties.

Perry Eskridge, government affairs director of the Whatcom Association of Realtors, is involved with that process. Over the course of the year, they’ll look at studying how to maintain flows in the Nooksack River, come up with conservation measures and identify projects that will enhance salmon habitat.

They have the their work cut out for them. The county watershed is complicated, to say the least. Groundwater is connected to surface water, but it’s not always clear how. In the past, Eskridge said, attempts to map the county’s series of underground aquifers have proved difficult. Some well owners can drill down and get clean water, while their neighbors, maybe just a few miles away, drill a well and can tap into a completely different aquifer — one that’s salty, or otherwise undrinkable, or they have to drill much, much deeper than the first well.

“It’s that bizarre,” Eskridge said. “It’s dang near lot specific.”

Which is why, when the Hirst decision came down, the county didn’t have a process in place to meet its new demands — positively proving that a new well won’t impact other streams. So it shut down new building altogether.

“You’re faulting the counties for something they were never even tasked to do,” Robinson said. Historically, counties have relied on Ecology to make the decision about where new wells can be drilled.

In the county, it has a guideline called the Nooksack Rule, which was written in 1985, that set the limit for how much water there needs to be in streams in the Nooksack watershed.

The Hirst decision said that wasn’t good enough, and the county would have to verify for itself that each new well wouldn’t impact instream flows.

“You can’t prove a negative,” Robinson said. “It would be horribly expensive.”

There aren’t that many hydrologists in the state qualified to make that determination, and they come at a premium. Eskridge said he knew of one family who paid $50,000 for a water study on their lot.

“You’re talking about just a handful of individuals in the state of Washington,” he said. “And suddenly you’re talking about these people on the front line of every permit in the county.”

Even Ann Russell, a clean water advocate, doesn’t think the Hirst decision is a solution to the water problems in the county.

Single homes using wells in rural areas represent only a small portion of water use, she said.

She is the clean water program manager at RE Sources for Sustainable Communities, a Bellingham nonprofit. RE Sources agreed with the Supreme Court decision, but thought the county should have done more to prepare in case it lost, so that property owners weren’t caught in this bind.*

Now, however, she sees an opportunity in the state new rule, to fix the water system as a whole.

“If there’s been one bright side to the Supreme Court ruling, it’s issues about water quantity have been elevated,” she said. She’s glad more research is now going into studying groundwater and surface water in the county. But any solution, she said, can’t just be focused on small-impact sources, like the wells of rural property owners.

“I think it’s a good opportunity to look at the bigger picture,” she said. “It’s complicated. It’s going to take a lot of work. But we have to do it.”

As for Breakey, he’s just excited that he has the chance to build on his land again.

“Overall, it’s been marvelous to have exactly what I bought be exactly what I bought again,” he said. Although it’s not all happy endings.

The money he had planned use to build his dream house is gone.

“I just wish we’d never bought that property,” he said. “I wish I’d never saw it.”

He might not be able to build his house there at all.

“It might be more realistic for us to get the permits all ready to go, just so I can sell it,” he said. At least, however, that’s an option again.

“I am ecstatic that my property will actually be worth something.”

*Correction: This article has been edited to clarify RE Sources’ stance on the Hirst decision, and correct a quote by Ann Russell. March 7.


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