Something that I think that most marijuana businesses can attest to, is that finding a location for a licensed marijuana grow facility can be very difficult in Washington State. One of the issues in finding a location is making sure that there is an adequate water supply for the marijuana production and processing facility.
Last week’s Washington State Supreme Court decision may have just made things even more difficult for marijuana business operating in rural counties. Many licensed marijuana grow operations in Whatcom and other rural counties rely on “exempt” wells for their water supplies. Use of these exempt wells has been per state statute, which allows landowners to withdraw up to 5,000 gallons per day of groundwater for certain domestic, agricultural and industrial uses without otherwise having to comply with state requirements re water right permitting. The Washington State Supreme Court, however, has ruled that other factors besides this state statute must be taken into consideration when a local jurisdiction issues a building permit reliant on use of an exempt-well.
In Whatcom County v. W. Wash. Growth Mgmt. Hr’gs Bd., the Supreme Court held that Whatcom County must first determine whether adequate water exists before granting a building permit that is reliant upon use of an exempt well. Until now, Whatcom County (and most other jurisdictions in Washington State) did not require a building permit applicant to demonstrate that its use of an exempt-well would impair any senior water rights and/or the adequacy of water in the particular water basin in which the building would be located. This new Supreme Court decision means that either the county or the building permit applicant will need to verify that the use of an exempt well will not interfere with any other water rights in the basin and/or the general availability of water in the area.
Whatcom County does not yet have a system in place to evaluate water availability before issuing building permits reliant on exempt wells. I would therefore not be surprised if Whatcom County issues a moratorium on the issuance of building permits that rely on exempt-wells. This means that anyone who is intends to use exempt well to provide water for its development but has not yet filed a building permit in Whatcom County could be facing problems moving forward.
Marijuana businesses that wish to locate in Whatcom County or other rural areas in Washington State should carefully review the legal status of their potential water supply. More information on Washington State water law and use of exempt wells can be found here. Although the new Supreme Court ruling applies specifically to Whatcom County, the ruling could be used to require other counties to reevaluate the issuance of building permits that rely upon the use of exempt-wells. As demands on water increase, we will likely see more restrictions and regulations on water usage by licensed marijuana facilities in rural counties.
For more information on the regulation of marijuana businesses, please contact Heather Wolf.