Posts tagged Water Rights
Legislative Bill to “Fix” Hirst

The wait is over. 

On January 19, 2018, the Washington State Legislature passed, and Governor Jay Inslee signed into law, a bill for issues facing rural homeowners stemming from the Washington State Supreme Court decision in Hirst.  Since the 2016 Hirst decision, Washington counties had been left with uncertainty regarding land use planning and liability in permitting – and many rural landowners were unable to obtain basic residential building permits if the residence would rely on a permit-exempt well.

What does this mean for water restrictions?

In short, rural homeowners and construction businesses are now able to more freely build on and develop plots of land that rely on well water, now that SB 6091 has become law. 

The legislation gives clarity to counties’ long-range planning, and a process to approve building permits and subdivisions as follows: 

  • A building permit applicant must pay permitting authorities $500 to build on a plot of land reliant on well water

  • Applicants building in basins with existing watershed planning may then be approved to use a permit-exempt well for domestic use for up to a yearly average of 3,000 gallons per day

  • Applicants building outside of those basins, may then be approved to draw up to 950 gallons per days out of their well

The measure also clarifies counties and cities may rely on Ecology’s instream flow rules when complying with the Growth Management Act (GMA) water availability standards.   However, be aware that if you are located in Skagit Count, there may be additional requirements under state law to observe.

While this decision may not be what everyone was hoping for, Governor Inslee stated in an online statement, “While far from perfect, this bill helps protect water resources while providing water for families in rural Washington”.

Lake Chelan Water Rights

Have a water rights application pending within the Lake Chelan Basin?  Act fast or you could lose out on a chance to get water.

The Department of Ecology (“Ecology”) has initiated a “Coordinated Cost-Reimbursement Program” (the “Program”) to allocate approximately 5,200 acre-feet per year, which represents all of the remaining allocable water from the Lake Chelan Reserve.  The water will be allocated to applications for surface water permits, ground water permits, and permit-exempt groundwater uses.

There are more than 150 pending applications for these uses on file with Ecology for water in the Lake Chelan Basin, and participating in the Program is no guarantee that your water right will be granted.  However, if you don’t participate, you may never get your water right processed, unless more water is someday added to the Lake Chelan Reserve — and anyone who participates in the Program will have their application processed before yours, no matter when you first applied.  Applicants who do not participate can still try to purchase an existing right, but that opportunity is rare and expensive.

To participate in the Program, you will be asked to pay a contractor the state hires to process your application.  Ecology estimates this may cost between $5,000 and $15,000. For now, you must tell Ecology prior to February 1, 2018 of your interest to participate in the Program.  If you do not, your application will be rejected and you will have to reapply for water rights. If you do not want to participate in the Program, but want to keep your application on file to maintain your filing date, YOU STILL NEED TO REPLY to Ecology by February 2, 2018 — or your application will be rejected.  Anyone who wants to obtain a water permit but is unsure of paying the cost should at least express interest.  After collecting interest in the Program, Ecology is required, by law, to give a cost estimate to each applicant and a timeline for processing the applications.  Only after receiving this information does an applicant need to commit to participating in the Program and pay the cost.

You may have received a letter about this process from Ecology.  Be sure to respond by the deadline.  If you have not received this letter and believe you have an application for water within the Lake Chelan Basin, you should contact Ecology immediately. 

Should you need guidance through this process, JDSA is here to help.

Permit-Exempt Wells

New Restrictions from The Washington State Supreme Court

There are new rules regarding permit-exempt wells that will restrict growth in some rural communities.

On October 6th, 2016, the Washington State Supreme Court made a ruling that impacts the responsibilities of counties within the State to review permit-exempt (household) wells in connection with building permits and subdivision applications.

A permit-exempt well is, as the name suggests, a well that does not require a water permit from the Department of Ecology.

The Court’s decision will effectively preclude counties from granting building permits and subdivision applications that intend to rely on household wells that will impair a minimum, in-stream flow (a rule set to protect river and stream flows at sufficient levels for fish). Essentially, if withdrawing water from the exempt well would drop a nearby stream level below minimum flow levels set by the Department of Ecology (Ecology), you can’t withdraw water.

So how does this affect you?

At the time of writing, it remains unclear. Primarily, the decision directs the counties to go beyond the in-stream flow rules adopted by Ecology, and conduct their own analysis when determining legal availability of water for rural development.

The result of this decision in many counties will be burdensome hydrogeology report requirements – even for a basic residential building permit on a rural property. It could mean blanket denials of all building permits and subdivision applications for properties within watersheds that are already fully appropriated. This in turn could mean long delays in receiving building and development permits – if any will be granted at all.

In counties with approved watershed plans that include “reserve water” in anticipation of future growth (such as Chelan County), the impacts of this Supreme Court decision will likely be much less extreme. However, regardless of where you live in our State, the landscape is changing rapidly with respect to water availability.  And, while the topic may be dry (pun intended), the decision has important ramifications for future growth within the State.

You’re probably wondering how this came about.

The Hirst decision arose from a lawsuit filed by a group of environmentalists against Whatcom County, alleging that Whatcom County was not satisfying its obligations under the Growth Management Act (GMA) by granting building permits that intended to rely upon household wells without conducting an independent analysis of water availability. Why? Because the GMA requires counties to ensure an adequate water supply exists before granting a building permit or subdivision application.

In its decision, the Supreme Court stated that an applicant for a residential building permit must produce proof that water is both legally available—and actually available—when the applicant is relying on a permit-exempt well.

For environmentalists, the decision is a big win. The decision squarely precludes the unchecked growth of single-family residences relying on permit-exempt wells in rural areas.  As stated by the Court in the decision, “this is precisely the ‘uncoordinated and unplanned growth’ that the legislature found to ‘pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state.’”

Right now, the net result is counties cannot issue building permits unless there is water actually and legally available.

To learn more about this topic and the details of the ruling, read the full article. To better understand how this Supreme Court ruling may affect your permit application, call us today at JDSA Law.