Exempt Well/Water Information

Updated 4/24/2017
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 2016-066 took 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 mus 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. 
Next Steps
Whatcom County will continue to work on protecting instream flows and resolving the private well restrictions imposed by the Court. The issues are complex and not quickly solved. The County's next steps include:
  • Determination of fair and equitable polices regarding pending development and water use applications and approvals for folks who have spent a significant amount of effort on securing what was legal water prior to the Court's decision.
  • Pursue potential changes to the state law with the state legislature to resolve the issues.
  • Funding and completion of the County's groundwater model.
  • Pursue private individual well mitigation approaches and public basin wide mitigation strategies to protect instream flows.
  • Continuation of on-going long term water supply planning.
 As updates become available, we will keep you informed on this website. We have created a news flash item that you can subscribe to and when new information is posted related to water issues, you will receive notification. The process is simple using the Notify Me application on the website--scroll down to the News Flash Heading then choose Planning and Development Services Exempt well/water information category and click on the e-mail icon on the left to receive email notification of updates.

Quick Links

The links below provide more information about the issues involved. If you have specific questions or want more information please contact Planning and Development Services at pds@whatcomcounty.us or 360-778-5900 or the Whatcom County Health Department at health@whatcomcounty.us or 360-778-6000.