With the WRIA 1 adjudication claim filing deadline approaching, you may be hearing more about permit-exempt wells, especially if you live on rural land in Whatcom County and use a private well as your water source. You may be asking yourself: what is a permit exempt well, how do I know if I have one, and how do I protect my ability to use one?
What is a permit-exempt well?
In Washington, most water use requires a state-issued water right. But some small-scale groundwater uses are exempt from permitting under the Groundwater Code (RCW 90.44). These exempt uses are:
Wells that withdraw water for these exempt purposes are often called permit-exempt wells. You likely have a permit-exempt well if you use a private well installed after 1945, do not have a formal water right permit or water right certificate, and your water use is consistent with the above limitations. Permit-exempt wells are exempt from permitting requirements and, to the extent that the water is regularly used beneficially, the user is entitled to a right equal to that established by a permit issued by the Department of Ecology (RCW 90.44.050). Even though this water use doesn’t require a documented water right, you do still have a legal right to use the water and should file a claim in the adjudication.
How much water can be legally withdrawn from a permit exempt well?
Washington law allows water users to “stack” permit exemptions. This means a single well (or multiple wells) can supply water for one or more exempt uses, and an exempt use can also exist alongside a permitted use (like a water right certificate, permit, or statement of pre-1945 water right claim). That said, each project is limited to one exemption per type of use, even if the water comes from multiple wells. A “project” is generally defined by shared ownership, coordinated development efforts, and the timing of the water use. (Whatcom County Public Works WRIA 1 Adjudication Resources, Aug. 2024)
How much water can be legally withdrawn will depend in part on when the well was drilled or when the building permit was issued. The permit exemption, first adopted with the Groundwater Code in 1945, originally allowed for withdrawal of up to 5,000 gallons/day for domestic use. However, in a significant 2016 decision, the Washington Supreme Court ruled that counties must ensure new wells don’t harm senior water rights or in stream flows, which effectively stalled rural development in Whatcom County. The Legislature responded with the “Hirst fix” in 2018 (ESSB 6091), and the Washington State Department of Ecology finalized new related WRIA 1 rules in 2020. These changes reduced the amount of water rural homes can use from new permit-exempt wells, depending on when the well was drilled or the building permit was issued.
A chart showing how these changes break down in Whatcom County can be found on page four of the Department of Ecology’s Washington State Water Rights Glossary (Publ. 20-11-001).
What is my well was drilled before the Groundwater Code was adopted in 1945?
If your well was installed before the Groundwater Code took effect in 1945 and the water use has been continuous since that time, you may have a Statement of Water Right Claim. This type of claim asserts that the water use is a vested right that began before the state established its groundwater permitting system in 1945. A Statement of Water Right Claim is not the same as filing a “claim” or “claim form” in the WRIA-1 adjudication, even though this terminology can be confusing.
That being said, if you believe you have a pre-1945 Statement of Water Right Claim, you should still file a claim in the adjudication. While pre-1945 claims do not have to meet the permit-exempt use criteria discussed above, these claims are still limited by the scope of the historic beneficial use. In other words, the amount and type of water use must be consistent with how the water was actually used prior to 1945, the use must have been continuous, and the right may not be expanded or enlarged beyond that historic use.
How to fill out the claim form for a permit-exempt well?
If your home or business uses a permit-exempt well, you may be asking yourself whether you should complete Part B or Part C of the adjudication claim form.
Part B may be the right choice if you’re using water from a single permit-exempt well drilled after Jun 26, 2020, do not have a formal water right document or pre-1945 claim, and your use is limited to 500 gallons per day for indoor domestic purposes like drinking, cooking, and bathing, with outdoor irrigation of 1/12 acre or less.
Part C may be the better choice for properties with multiple exempt water uses or those with older wells, particularly those drilled before 2020, and especially before 2016, when higher exempt usage limits were legally allowed. For example, wells drilled before the Hirst decision in 2016 may have been used for up to 5,000 gallons per day for domestic purposes, plus stock watering, irrigation, and small-scale industrial uses, all of which are exempt under RCW 90.44.050. Filing Part C allows documentation of this broader range of uses and requests recognition of a greater quantity of water for exempt uses than is permitted under the newer limits established in 2020. Users of a pre-2020 exempt well should consider filing Part C to avoid limiting their domestic water usage to 500 gallons per day.
While Part C requires more detailed information and may take more time to complete, it can be worthwhile for securing the full scope of your water right in the adjudication. If you’re unsure which part of the form applies to your situation, consider consulting with an attorney experienced in Washington water law.
What if you have a permit exempt well but didn’t get a claim form?
If you use a private well and didn’t receive a claim form, you should still file a claim to protect your right. If you believe you should have received a form, but didn’t, you should contact the Department of Ecology via email at WRadjudications@ecy.wa.gov or if you did not receive an adjudication packet or missed your mail delivery, you may pick up a packet from Ecology’s Bellingham Field Office from 8 a.m. to 5 p.m. at 913 Squalicum Way, Suite 101.
Conclusion
The WRIA 1 adjudication is an important opportunity to ensure your use of a permit-exempt well is legally recognized and your property value is protected. Permit-exempt wells are a vital water source for many rural residents in Whatcom County, but it’s important to understand that an exemption from the permitting requirements is not an exemption from the adjudication process. Filing a claim in the adjudication is important to protect your legal right to use water pursuant to a permit-exempt well within WRIA 1.
If you have any questions or concerns about the adjudication or your water rights, you should contact an attorney experienced in water law.
DISCLAIMER: 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. 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.
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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