Since the Whatcom County v. Hirst decision came down in October, many rural landowners have questions regarding their ability to develop land in Whatcom County using an exempt well. Under Hirst, which is discussed in our earlier blog post here, Whatcom County must rethink its standards for approving building permits reliant on exempt wells for their water supply. It is very unclear at this point where this leaves landowners who already have an exempt well on their property, but whose applications for a building or subdivision permit are pending, as well as those who simply hope to develop rural land in the future.
On October 25, the Whatcom County Council issued a sixty-day emergency moratorium on the acceptance and processing of applications and permits for subdivisions, building permits, and discretionary permits that rely on permit-exempt wells. During the moratorium, the County will evaluate its options for amending the County’s Comprehensive Plan in compliance with the Court’s decision. It is very uncertain what action the County will take, but it will likely consider whether applicants who had building or subdivision permit applications pending prior to Hirst should be considered “vested,” which would allow those applications to be evaluated under the County’s pre-Hirst standards. Recent case law in the court of appeals tightening the standards for vesting may complicate this issue. The County will also need to decide how to evaluate new permit applications in light of the Court’s decision. This may require future applicants to show that they have a legal source of water by providing evidence of a water right, access to a public water supply, or a hydrogeologic study to show that the new water use will not impair instream flows.
The County Council has indicated that it may introduce a proposed interim amendment dealing with these issues at its meeting on November 22. No action will be taken at this meeting, and the amendment will likely be scheduled for a public hearing on December 6.
As many rural Whatcom County residents have expressed concern over the potential impact of the Hirst ruling, it is important to keep in mind that the decision applies specifically to the standards Whatcom County uses when evaluating new permit applications, and therefore does not apply to those who already have homes constructed or building permits issued that rely on exempt wells, or those who have access to a public water supply, including shares in a water association. However, the situation is much more uncertain for landowners who had pending applications before the County at the time of the Hirst ruling. It is also unclear at this point what applicants will be required to show in the future in order to secure a permit to develop rural land using an exempt well, although we can expect that it may be challenging. Simply having a well in place prior to Hirst will not guarantee the ability to build on that land in the future.
We will continue to post updates as they become available from Whatcom County or the Department of Ecology. The County Council posts its regular meeting agenda for public viewing here. For more information on how the Hirst ruling may affect you, please contact our office.