Historical Exempt Well Water Information

This webpage provides historical information about Whatcom County's response to the October 6, 2016 Supreme Court Ruling in Whatcom County v. Western Washington Growth Management Hearings Board (also referred to as the Hirst Decision). For current information, please refer to our Exempt Well Water Information Page.

Historical information: 

On October 6, 2016, the Washington State Supreme Court issued a ruling in the case of Whatcom County v. Western Washington Growth Management Hearings Board. The case challenged the validity of Whatcom County’s Comprehensive Plan and Development Regulations relating to the protection of water quality and quantity under the Growth Management Act (36.70A RCW). The Supreme Court ruled:  
  • It is the County’s responsibility under the Growth Management Act to determine legal availability of water for purposes of issuing land use decisions, not the Department of Ecology.
  • Development permit applications that are proposing to use a private well water supply (in a basin that is closed or partially closed to surface water withdrawals by the Department of Ecology) must demonstrate that groundwater withdrawal will not impair a senior water right, including instream flows established in Chapter 173-501 WAC (the Nooksack Basin Instream Flow Rule).
In response to this ruling Whatcom County Council adopted Emergency Ordinance 2016-048 on October 25, 2016. This ordinance placed an emergency moratorium prohibiting the filing, acceptance, and processing of new applications for project permits for uses that rely on permit-exempt groundwater withdrawals for water supply on property located within a closed or partially closed basin (as identified in Chapter 173-501 WAC, shown in Exhibit A.

 On December 6, 2016 the County Council adopted an interim ordinance ended the moratorium and enacted code to implement the Supreme Court's decision.

 This interim Ordinance 2016-066took effect on December 18, 2016, and amended WCC 24.11.060 to require the County Health Department to verify legal availability of water prior to the issuance of permits. The County Council extended the interim ordinance (and made minor changes) with interim Ordinance 2017-008, adopted on March 7, 2017, and Ordinance 2017-019, adopted on April 18,2017. The current interim ordinance requires that:

A.  Prior to issuance of a building permit or other project permits, the applicant must provide Whatcom County planning and development services evidence of adequate water supply as documented by a water availability notification signed by the director, except as described in subsection B.  The water availability notification shall document a supply of potable water adequate to serve a land use associated with a project permit in terms of quality, quantity, and legal availability. The applicant must provide evidence of legal availability in the form of:
   

  1. A water right permit from the Department of Ecology, or
  2. A letter from an approved public water purveyor with sufficient water rights, stating the ability to provide water, or
  3. Documentation that water can be supplied by a rainwater catchment system approved by the Whatcom County Health Department, per Department of Ecology Policy 1017.
 B.  Not withstanding the provisions of subsection A, for a new permit-exempt groundwater withdrawal per RCW90.44.040 the applicant must provide evidence of legal availability in the form of:
  1. Documentation that the well site is located in the Samish River watershed, or in Point Roberts, Eliza Island, or Lummi Island, as shown in Figure 24.11.060, or
  2. A study prepared by a qualified hydrogeologist licensed in the State of Washington demonstrating a proposed groundwater withdrawal would not impair a senior water right, including instream flows established in Chapter 173-501 WAC where applicable, in accordance with current statutes and case law. Such documentation must be verified by the county either through consultation with the Department of Ecology, or a qualified technical review team appointed by the county. The county may require a third party review by an independent qualified hydrogeologist if the county determines additional technical expertise is needed. The cost of the third party review shall be borne by the County; or
  3. A mitigation plan prepared by a qualified hydrogeologist licensed in the State of Washington, and approved by Whatcom County. The plan shall include:

    • a. Evidence that the proposed withdrawal with mitigation in place will not impair a senior water right, including instream flows established in Chapter 173-501 WAC where applicable, in accordance with current statutes and case law. Such documentation must be verified by the county either through consultation with the Department of Ecology, or a qualified technical review team appointed by the county. The county may require a third party review by an independent qualified hydrogeologist if the county determines additional technical expertise is needed. The cost of the third party borne by the county.
    • b. A monitoring and reporting plan, including a quality assurance/quality control plan.
    • c. Financial assurance to ensure mitigation measures for the duration of the water use, and prohibit water provided for the purpose of mitigation from appropriation for any other purpose. 
 

 C. A water availability notification is not required for:

  1.  A project permit that does not require potable water.
  2. A project permit relying on a permit-exempt groundwater withdrawal per RCW 90.44.050, and proposing (a) a remodel of an existing building or (b) replacement of a demolished or removed building, but not proposing a change of use; however, such permits shall require current documentation of water quality and quantity, as approved by the director.
  3. A project permit relying on surface water withdrawal for potable water, and proposing (a) a remodel of an existing building or (b) replacement of a demolished or removed building, either of which would increase the floor area by no more than 50 percent over that of the existing building; however, such permits shall require current documentation of water quality and quantity, as approved by the director. 

Passage of Hirst Legislation - Whatcom County Highlights

The Washington State Legislature passed a bill January 18, 2018 that includes a Hirst agreement. It is important to keep in mind the complexity of water issues and that this bill has been accomplished after months of negotiation and compromise in Olympia. Whatcom County Executive Press Release, January 19 2018

Quick Links
The links below provide more information about the issues involved.