Washington court decision restricts permit-exempt wells

By Diana Carlen
WAWG Lobbyist

Recently, the Washington State Supreme Court issued a controversial water decision involving the use of permit-exempt wells in rural areas, effectively limiting rural development in the state. The decision is known as the Hirst case and stems from a challenge brought by the environmental group Futurewise who argued that Whatcom County’s comprehensive plan failed to protect water resources under the Growth Management Act (GMA).

At issue in the case was the county’s use of exempt wells, meaning a property owner does not need a water right to draw from such a well if fewer than 5,000 gallons of water is taken per day. The county allowed use of exempt wells in a basin that had been closed to new water-rights applications because it was consistent with the Washington State Department of Ecology’s (Ecology) Nooksack Basin Instream rule.

In a 6-3 decision, the Supreme Court held that the county failed to comply with the GMA’s requirement to protect water resources. Specifically, the Court found that the GMA requires the county to make an independent decision from Ecology about legal water availability before issuing a building permit and cannot rely on the exemptions for domestic uses written in Ecology’s instream flow rule.

The Hirst case shifts responsibility for water appropriations for these very small withdrawals from Ecology as the administrator of state water resources onto local county building departments. In Whatcom County, new applications will now need to meet the new state requirements. That means providing costly hydrogeological studies proving that drilling a small well (which used to fall under the permit exemption due to its small size) will not impact any senior water rights including minimum instream flows for fish. This creates a practical ban on new residential wells.

The decision has created a lot of confusion for local governments required to comply under the GMA. Ecology’s interpretation of the Hirst decision is that it does not affect individuals who have built with a legally issued building permit, and thus those individuals can continue to withdraw water from an exempt well. What is unclear is what the impacts of the Hirst decision are outside Whatcom County. Counties are currently reviewing the decision to determine what the impacts of the decision are, but a couple counties have promptly responded to the decision. For example, the Whatcom County Council enacted an emergency moratorium in late October for new applications for projects that rely on permit-exempt groundwater withdrawals for water supply throughout most of the Nooksack River Basin. In another example, Spokane County passed an interim ordinance on Nov. 1 that restricts all new development in the Little Spokane River Watershed and requires applicants to demonstrate they would not impair existing water users in the rest of the county.

The decision has also attracted attention from state legislators. Work sessions are scheduled in both the Washington State Senate and House in November and December to hear more about the decision and the impacts it will have. Several legislators have also publicly voiced concerns with the decision and indicated they will be offering legislation to reverse the Supreme Court’s decision during the 2017 Legislative Session.

WAWG will be monitoring the legislature for possible legislation on this issue.