Washington State Supreme Court Issues Ruling on Permit-Exempt Wells

A recent State Supreme Court ruling strikes a blow to permit-exempt wells in rural Whatcom County and throughout the state.  In Whatcom County v. Hirst, the State Supreme Court struck down portions of Whatcom County’s comprehensive plan relating to building permits that rely on permit-exempt wells for their water supply. For years, rural landowners throughout the state have secured their water supply by a state law that exempts certain small groundwater withdrawals from the state’s water-right permitting system. Under the new ruling, however, Whatcom County can no longer issue a building permit that relies on an exempt well for its water supply unless the County first makes an affirmative finding that the well will not impair any senior water rights, including the minimum flow set for the Nooksack River. This may be a difficult burden, as previous cases have been very protective of instream flows.

Prior to the ruling, the County’s comprehensive plan incorporated the Department of Ecology’s water regulations by allowing a building or subdivision permit applicant to rely on an exempt well without further analysis of water availability unless Ecology had closed that particular area to exempt wells. This approach allowed the permit to move forward in most cases, as Ecology’s water regulations allow exempt wells in most areas of the County.

The Court held that under the state’s Growth Management Act, the County cannot simply rely on Ecology’s regulations, but has its own duty to ensure that “adequate” water is available for any new development. This includes a duty to ensure not only that water is physically present, but also that it is legally available, meaning that it will not impair any existing water rights. The most significant water right in Whatcom County affecting permit applicants is in many cases the instream flow rule for the Nooksack River (the “Nooksack Rule”).

Ecology adopted the Nooksack Rule in 1985 as the first instream flow rule in the state. The Rule created a water right in favor of the state, establishing minimum stream flows that must be maintained in the river to protect fish and wildlife. Washington State follows a “first in time, first in right” system of water allocation, where older water rights take priority over all water rights that come after them. Thus, while water rights that are older than the Nooksack Rule are not impacted by the Rule, any water use that began after the Rule’s adoption are subject to its minimum flow requirements. While stream flows in the Nooksack typically run below the minimum flow for a large portion of the summer and fall, Ecology has interpreted the Nooksack Rule as allowing the continued use of permit-exempt wells in most areas of the County.

Ecology is responsible for managing all of the state’s water resources, including both instream flow rules and permitted water uses. It is therefore somewhat surprising that the Hirst Court held the County failed to adequately protect water supply by relying on Ecology’s regulations. It is unclear how the County will comply with the Court’s ruling, but it will certainly become much more difficult to establish an adequate water supply for a building or subdivision permit in rural areas in the future. The County may consider a moratorium on new development while it evaluates a path forward.

Ecology has set up a new informational webpage where it will be posting updates as they become available. For more information on instream flow rules and water law in Washington State, read my article in Washington Law Review. Information on the Hirst case’s application to new marijuana businesses is available on the Marijuana Business Blog.