What’s Next for Exempt Wells in Whatcom County?

Many Whatcom County landowners are wondering “what’s next” in wake of the Hirst ruling on permit-exempt wells. Since the State Supreme Court’s October 2016 decision, landowners have faced uncertainty in their ability to rely on an exempt well to develop rural property. This uncertainty is likely not going away soon.

In the Hirst decision, the Court held the County violated the State’s Growth Management Act (GMA) by failing to ensure that water is “legally available” before granting a building permit that will utilize a permit-exempt well for its water source. Previously, the County relied on Ecology’s water regulations to make this determination, which allow the use of exempt wells in most areas of Whatcom County.

Since the ruling, the County has implemented the Court’s decision with an interim ordinance requiring landowners to prove water is legally available before granting a building or subdivision permit. This is a difficult and expensive process for most property owners, and many not be possible in many situations. While frustrating for landowners, the interim ordinance is intended to keep the County in compliance with the Court’s ruling, while allowing time to develop a workable permanent solution.

The County has indicated that it is looking to the State Legislature for help. Last December, the County asked the Legislature to amend the GMA to allow counties to rely upon Ecology regulations as determinations of water availability, which would essentially turn the clock back to a time before the Hirst decision. However, similar legislation stalled in the legislature last month and it is unclear whether the Legislature will take timely action on this issue.

At its April 18 meeting, the County Council will consider a second resolution asking the Legislature for an amendment to GMA. In the meantime, the County will hold a public hearing on a third interim ordinance on exempt wells. This ordinance would maintain the requirement that permit applicants prove water availability in one of five ways:

  1. a water right permit from Ecology;
  2. evidence of ability to connect to a public water source;
  3. approval of a rainwater catchment system;
  4. a hydrogeological study that concludes the water use will not impair senior water rights, including instream flows; or
  5. a mitigation plan prepared by a hydrogeologist that concludes the mitigated water use will not impair senior water rights.

However, the proposed ordinance contains several changes that lesson the burden on landowners. First, it would shift the burden to the County, and not the permit applicant, to bear the cost of any required third-party review of a study or mitigation plan. Additionally, the new ordinance relaxes the requirements for an approved mitigation plan by allowing the applicant to provide assurance that they will comply with the plan in various ways. Under the earlier ordinance, financial assurances were required.

While these proposed changes will reduce some of the costs for landowners hoping to develop their property, the exempt well issue will likely not be resolved soon. For more on the Hirst decision and its impact, read our earlier series of blog posts here, or feel free to contact our office to discuss your situation.