State Supreme Court rules against exempt wells

Yesterday we wrote about how exempt wells, which don’t need to show water is available before they are allowed to be drilled, are hurting salmon and treaty rights in the deep South Sound.

This morning the state Supreme Court ruled that a growth plan by Whatcom County didn’t take into consideration the cumulative impacts of hundreds of new exempt wells.

From the ruling:

We reject the County’s arguments. The GMA requires counties to ensure an adequate water supply before granting a building permit or subdivision application. The County merely follows the Department of Ecology’s “Nooksack Rule”; 1 it assumes there is an adequate supply to provide water for a permit-exempt well unless Ecology has expressly closed that area to permit-exempt appropriations. This results in the County’s granting building permits for houses and subdivisions to be supplied by a permit-exempt well even if the cumulative effect of exempt wells in a watershed reduces the flow in a water course below the minimum instream flow. We therefore hold that the County’s comprehensive plan does not satisfy the GMA requirement to protect water availability and that its remaining arguments are unavailing. We reverse the Court of Appeals in part and remand to the Board for further proceedings.

The case stems from an appeal of the county’s comprehensive plan that has wound itself through the courts the last few years.

From the Bellingham Herald:

The Hearings Board in its June 2013 ruling listed several approaches the county could take to improve its water-resource protections. The brunt of the problem, the board said, was that the county had allowed so-called “exempt” wells in stream basins that had been closed to new water-rights applications.


The wells are called “exempt” because the property owner doesn’t need a water right to draw from a well as long as it takes less than 5,000 gallons of water a day.


Attorney Jean Melious, who represented the four citizens who along with anti-sprawl group Futurewise brought the initial appeal to the Hearings Board, said the Appeals Court’s decision doesn’t eliminate the problem caused by the proliferation of rural wells. More than 1,600 such wells have been drilled in closed basins since 1997, according to the Hearings Board’s decision.


“In terms of population, Whatcom County …. provides for the development of five new Blaine’s in rural and agricultural areas — mostly relying on exempt wells, and mostly in closed watersheds,” Melious wrote Monday, Feb. 23, in an email to The Bellingham Herald.

The State of Our Watersheds Report by the treaty tribes in western Washington demonstrated how pronounced the exempt well issue really is. Between 2008 and 2014 there were 564 new exempt wells drilled in Whatcom County. Over 70 percent of those wells were in basins that required protection because flows were already too low.

The red dots in the map below indicate wells dug since the 1980s in a closed basin: