New Rules for New Exempt Wells as of June 27, 2020

June 25th, 2020 - Catherine A. Moore

The Washington State Supreme Court decision Whatcom County v. Hirst, 186 Wash.2d 648, 381 P.3d 1 (2016) set off years of uncertainty for rural and suburban development in Whatcom County. Most of Whatcom County is in the Nooksack River watershed (“WRIA 1”). You can find out if your property is in WRIA 1 or a different watershed by using this online tool from the Department of Ecology.

Many homes in rural Whatcom County rely on exempt wells as their water source. Exempt wells are exempt from the general requirement in Washington that an individualized water right is required before water can be put to use; with an exempt well, a user can withdraw certain quantities of water for certain purposes without obtaining an individual water right. As much of WRIA 1 is closed to new water rights other than exempt wells, exempt wells are crucial to new development in Whatcom County. Before Hirst, Whatcom County granted building permits for single-family homes supplied with water from exempt wells without determining whether other water rights would be impacted by the new well. Hirst held that this practice violated the Growth Management Act.

Several attempts to address the holding of Hirst were made, but recently, the Department of Ecology announced that it had finalized a new WRIA 1 rule governing exempt well use. There are no further anticipated changes to exempt well rules in WRIA 1. You can read more about the new WRIA 1 rule on the Department of Ecology’s website. The new rule should be available soon in the online version of Ch. 173-501 WAC.

If you’re in WRIA 1, and if your home gets its water from an exempt well or if you’re planning on building a home supplied by an exempt well, you might be wondering where this leaves you.

If you obtained your building permit or dug your exempt well before October 6, 2016: You may withdraw up to 5,000 gallons per day for domestic uses, plus water up to half an acre of a noncommercial lawn or garden and put the water to the other uses listed in RCW 90.44.050, including stock watering and industrial purposes. If there are multiple properties connected to one exempt well, the properties must share these amounts between themselves.

If you obtained your building permit or dug your exempt well Between Hirst (October 6, 2016) and January 19, 2018: Beginning October 25, 2016, Whatcom County imposed a moratorium on issuing building permits where the proposed building would rely on an exempt well for most parts of WRIA 1. Ord. 2016-048. Effective December 18, 2016, Whatcom County rescinded the moratorium and enacted a new ordinance which prohibited the issuance Whatcom County did not issue building permits for buildings to be supplied by exempt wells unless the applicant demonstrated that the well would not impair existing water rights. Ord. 2016-066.

If you obtained your building permit or dug your exempt well between January 19, 2018 and June 27, 2020: The state legislature passed the so-called “Hirst fix legislation” effective January 19, 2018. ESSB 6091, now codified at Ch. 90.94 RCW. The new state law permitted withdrawals of up to 3,000 gallons per day in WRIA 1, but only for domestic purposes. If multiple homes share one exempt well, the total withdrawals for domestic purposes are capped at 5,000 gallons per day. Whatcom County required these limits to be recorded on the property’s title. The requirement to show that no existing water rights would be impaired was removed for most of WRIA 1.

If you obtained your building permit or dug your exempt well after June 27, 2020: You may withdraw up to 500 gallons per day for domestic uses and water a non-commercial lawn or garden up to 1/12 of an acre in size. If multiple homes share one well, these limits apply to each connection and the total withdrawals are capped at 3,000 gallons per day for domestic use and half an acre in lawn or garden. The Department of Ecology clarified in Publication 19-11-081 that the limits in RCW 90.44.050 for stock watering and industrial purposes are not limited by the new rule. Whatcom County will continue to require these limits to be recorded on title.

This blog provides an overview of exempt well limits generally applicable in WRIA 1 in Whatcom County. Your situation may not be represented here. If you have questions about your well or water rights, you should contact an experienced local land use attorney for assistance.

Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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