Counties, builders, state seek help on water issue

This story was published 6/3/2002

By Nathan Isaacs
Tri-City Herald staff writer

The building boom in the Tri-Cities isn't such a boon for Benton County planners trying to decipher a State Supreme Court ruling while still processing construction permit requests.

The court ruling clouds the rules builders and others must follow in order to dig wells in subdivisions without getting a water rights permit. The wells are needed to provide irrigation and drinking water to new homes in unicorporated parts of the county that would otherwise be left dry.

Also fuzzying the picture are the desire by the county for the economic development that follows construction, a temporary hold on annexations by cities throughout the state and the fact that a water rights permit hasn't been issued in years.

Benton County commissioners just want to do the right thing without becoming the water police, says Commissioner Leo Bowman. That is the job for the state Department of Ecology.

Representatives from the state's 39 counties are expected to meet in Yakima today to discuss the issue.

Every so often, County Planner Terry Marden receives a request for a subdivision, which divides a property into more than four lots. The requests range in number from a 12-lot subdivision near Whitstran (now in the application pipeline) to an 1,800-lot project on Badger Mountain.

The county is mandated to make a decision on each request within 90 days. The time is needed to check with various state and local agencies to make sure the property is allowable for development. The time is also needed to bring the application before the planning commission and county commissioners.

One such check for the county is to ensure water is available for each property.

Historically, county subdivisions don't have access to drinking water systems, like those in cities. So developers have had to dig private wells for each lot.

For decades, developers took advantage of an exception that allowed them to build a well without having a water rights permit. That exception was for wells that pumped 5,000 gallons or less per day.

Developers and the state interpreted the exception to allow wells for each property since individually they pumped less than 5,000 gallons per day.

But in the mid-1990s, the Ecology Department changed its position on the exception and said all the wells within a subdivision should be added together, therefore exceeding the 5,000-gallons-per-day limit.

The building industry hollered. An opinion was sought from the state attorney general, who supported Ecology.

Ecology in 1999 filed a test case on the issue against a proposed 20-lot development called the Rambling Brooks Estates in Yakima.

The Yakima Superior Court disagreed with the Ecology Department's position and ruled for the development, owned by Campbell and Gwinn, LLC.

Ecology appealed to the state and on March 28, the Supreme Court ruled that the wells had to be added together.

However, the ruling was a tad ambiguous and left some questions unanswered.

"It's kind of a mess right now," said Ryan Brown, a Benton County deputy prosecuting attorney.

Everyone -- the county, the Ecology Department and developers -- are hoping a request to the court by home builders will be granted. Specifically, they want the court to say whether the ruling is retroactive and does the ruling prevent individual homeowners from drilling wells after the property is developed.

Benton County commissioners want to make sure they don't approve an application and then have a homeowner, who just paid $25,000 or more for a piece of property, come back to them looking for answers if water isn't available.

Commissioners also don't want to stop all development while the rules are made clearer.

"We're between a rock and a hard spot," Commissioner Max Benitz Jr. said during a meeting last week. "The Supreme Court has made a ruling. Now, we have to make a timely decision, and we don't know how Ecology is going to enforce the law. I hope the Department of Ecology will give us some guidance on how it will enforce the court's ruling."

The Benton County Planning Commission approved a 12-lot applicant last week with the caveat that the developer get a water rights permit or letter from Ecology saying wells can be drilled.

Bob Barwin, Ecology's manager for its water resources program, said the department will have to see what happens with the new motion to the court before making any new rules.

In the meantime, he said he would work with the county's planning department to be included in the application phase.

Basically, said Planner Terry Marden, the county hopes it can get from Ecology whether a subdivision applicant can build wells or whether it needs a water rights permit.