In a landmark decision on the use of exempt wells and county responsibility for evaluating impacts from the wells on instream flows, the Washington Supreme Court (Court) recently overturned a lower court decision in the Whatcom County v. Hirst case. The lower court decision appealed in this case essentially directed local governments to follow the Washington Department of Ecology’s (Ecology) interpretation of instream flow rules in determining water availability. This Court decision rescinds that direction, noting that the Growth Management Act (GMA) places an independent responsibility to ensure water availability on counties, not on Ecology. The decision also noted that the fact that county provisions are wholly consistent with Ecology’s regulations does not, by itself, render them consistent with GMA requirements.
The Ruling Constrains Exempt Well Use in Washington
Under existing law (RCW 90.44.050), the groundwater permit exemption allows, for a limited number of purposes, water users to construct and develop groundwater wells for small quantities of groundwater without obtaining a permit. According to the new ruling, there is no question that a permit-exempt well may not infringe on an earlier established right to water, including instream flow rules, under the doctrine of prior appropriation. The Court also found it contradictory that Ecology must consider the effect of groundwater appropriations on minimum flows when issuing water right permits, while counties did not consider these same impacts when issuing building permits with exempt wells. This means that in a basin with adopted minimum instream flows, any new exempt well or exempt well drilled after adoption of flows may be subject to interruption when flows are not met, rendering these wells legally unreliable as a continuous domestic water source.
The Ruling Increases County Responsibility for Water Availability Determinations under GMA
In addition, this ruling imposes a strict standard for county review of cumulative impairment from exempt wells due to rural development. Aspect has been working with Spokane, Stevens, and Pend Oreille Counties to establish a water bank for the Little Spokane River watershed. A water bank is a mechanism that facilitates transfer of water rights between sellers and buyers through use of the state’s trust water right program, using banked water as mitigation for new water uses. The three counties anticipated that use of unmitigated exempt wells would continue to be more restricted in the state and proceeded with water bank development to proactively address this concern, along with addressing other future water needs in the basin. The recent ruling in Whatcom County v. Hirst only increases the need for local jurisdictions to be directly involved with proactive water resource management.