At its November 22 meeting, the Whatcom County Council introduced a draft ordinance making interim amendments to the Whatcom County Comprehensive Plan and Whatcom County Code. The proposed interim amendments are the County’s response to the Washington State Supreme Court’s decision in Whatcom County v. Hirst, discussed in our earlier blog post, in which the Court held that the County’s procedure for approving building permits that will utilize a permit-exempt well for water supply failed to protect water resources under the Growth Management Act. The interim amendments, if approved, would remain in effect for no more than six months and would replace an emergency moratorium on permits imposed by the Council on October 25.
Under the interim amendments, permit applicants would be required to obtain a “water availability notification” from the Whatcom County Health Department. To obtain such a notification, the applicant would have to provide evidence of one of the following:
- a water right permit from the Department of Ecology,
- a letter from a public water purveyor with adequate water rights stating its ability to provide water,
- approval for a rainwater catchment system by the Whatcom County Health Department,
- a hydrogeological study demonstrating that the proposed groundwater withdrawal would not impair any senior water rights, including the instream flow rule for the Nooksack River,
- a mitigation plan prepared by a licensed hydrogeologist demonstrating that the proposed withdrawal would not impair any senior water rights, including the instream flow rule for the Nooksack River, meets certain monitoring requirements, and is approved by the County.
As a practical matter, this would leave applicants who intend to use a permit-exempt well with the option of preparing a hydrogeological study or mitigation plan. The applicant would be responsible for all of the costs associated with these options, including any third-party review that may be required by the County. Engaging a licensed hydrogeologist to prepare a study would not guarantee approval of the the desired permit, as the study may not be able to demonstrate that adequate water is available for the project. The Department of Ecology considers most of the groundwater in the county to be in hydraulic continuity with surface waters subject to instream flow requirements, so we can expect that a hydrogeological study may not be able to provide the necessary proof in many areas. Mitigation options may also be difficult, as the State Supreme Court has narrowed acceptable mitigation techniques in recent years.
Permit applicants in areas of the county that are not located within the Nooksack watershed may continue to rely on permit-exempt wells without meeting these additional requirements. This include Point Roberts, Lummi and Eliza Islands, and areas within the Samish River watershed. In addition, the requirements would not apply to remodels or to the replacement of an existing structure that utilizes a permit-exempt well.
The proposed interim amendments would apply to all pending and future applications for building permits, subdivision permits, and other discretionary permits for new water uses. This means that any permit applications that have not yet been approved must comply with the new requirements. The ordinance is scheduled for a public hearing on December 6. If approved, the ordinance would remain in effect for no more than six months, while the County continues to evaluate the options for a more permanent solution.