Editor note: Governor Inslee signed legislation this morning, Friday, Jan 19, to break the impasse that has frozen new water permits for over a year in rural Whatcom County. Here is a quick first look at what this bill does and how it will impact Whatcom County. We expect to provide more information on this important local issue in the next few days. - John Servais
Under the new law, most pre-existing permit-exempt wells are grandfathered in under previous laws. Updated 1/25/18 by author
From this point on, the Department of Ecology is required to create brief summaries for county planners – so property owners will know what is required in order to drill a permit-exempt well under new water law.
In brief - ESSB 6091
Some of the nitty-gritty details that apply specifically to WRIA 1 (There are 62 Water Resource Inventory Areas in Washington State. Whatcom County and the Nooksack River are #1 )
- Establishes that evidence of potable water for a building permit must meet certain requirements based on the Water Resource Inventory Area (WRIA) in which the building permit is sought.
- Provides that an applicant’s compliance with the permit-exempt groundwater statute and with applicable instream flow rules is sufficient in determining whether appropriate provisions for water supply for a sub-division have been made.
- Establishes that a county or city may rely on or refer to applicable minimum instream flow rules adopted by the Department of Ecology for purposes of complying with Growth Management Act and Planning Enabling Act requirements relating to water resources.
- Authorizes potential impacts to closed water bodies and potential impairment to instream flows in a specified set of WRIAs, contingent upon compliance with the updated watershed plan process established for that set of WRIAs.
- Authorizes potential impacts to closed water bodies and potential impairment to instream flows for a second specified set of WRIAs, contingent upon compliance with the watershed restoration and enhancement plan process established for that second set of WRIAs.
- Establishes a fee of $500 ($350 goes to Ecology) for each new permit-exempt withdrawal for a domestic purpose in the WRIAs for which an updated watershed plan process or a watershed restoration and enhancement plan process has been established.
- Establishes maximum daily withdrawals, as calculated on an average annual basis, for new permit exempt withdrawals for a domestic purpose in the WRIAs for which an updated watershed plan process has been established.
- Authorizes the issuance of $300 million in bonds to fund watershed restoration and enhancement projects.
- Requires metering of all new domestic permit-exempt groundwater withdrawals in portions of two specified WRIAs.
- Authorizes up to five water resource mitigation pilot projects in specified WRIAs.
In WRIA 1: the lead agency (The Joint Board) must invite a representative from each federally recognized Indian tribe that has a usual and accustomed harvest area within the water resource inventory to participate as part of the planning unit. In collaboration with the planning unit, the initiating governments must update the watershed plan for the WRIA. At a minimum, the updated watershed plan must include those actions that the planning units determine to be necessary to offset potential impacts to instream flows associated with permit-exempt domestic water use.
The updated watershed management plan may include, among other things, recommendations for modifications to fees established under the act and standards for water use quantities that are less than authorized under RCW 90.44.050, or that are more or less than the maximum withdrawals allowed under the act.
If an updated watershed plan is not adopted in WRIA 1 (Nooksack) by February 1, 2019, Ecology must adopt rules in the WRIA that meet the requirements of the act by August 1, 2020.
Side notes:
The WRIA 1 watershed planning unit was reconvened in 2013, but has been isolated from the Joint Board, for some undisclosed reason. The two entities don’t operate together. That may change now that the legislature is requiring updated watershed plans. The original watershed management plan did not complete the instream flow component of the plan – despite the fact that instream flows were included on the list of goals the WRIA 1 watershed planning unit intended to accomplish. Perhaps the planning unit will finally be able to finish that portion of the plan.
It appears that new exempt wells will be allowed in WRIA 1, with the implementation of a new $500 fee, on top of the existing $200 fee - updated 1/25/18 ($350 of the additional $500 fee goes to Ecology) and a new per day gallon limit for individual homes. (3,000 gallons per day for WRIA 1 - updated 1/25/18). It doesn’t appear that meters are required for permit-exempt wells in WRIA 1 at this time.
This bill is an emergency clause and went into effect this morning, right after Governor Inslee signed it into law.
CELP - The Center for Envoironmental Law and Policy - has posted a statement against Hirst fix legislation
Comments by Readers
Steve Harris
Jan 19, 2018Elisabeth, thanks for the update, MANY people were curious about what actually was signed by the Gov.
Sam Crawford
Jan 19, 2018Nice summary Elisabeth. Appreciate it.
Tim Paxton
Jan 20, 2018Nice to have one of the leading water rights experts in Washington to read, digest and summarize this legislation here on NWcitizen. Thanks Elisabeth.
Just curious. Will this “fix” somehow improve water quality for Whatcom County? Or salmon viability?
A reliable observer described how amused she was to be in the DOE offices in Fairhaven last year while bottled water was being delivered in large amounts. The staff seemed annoyed at the gales of laughter she delivered to the front desk. So, will the $500 permit tax/fee go to any actual water quality improvement effort? I doubt it.
g.h.kirsch
Jan 20, 2018The statement from the Center for Environmental Law and Policy clearly lays out how flawed this action is. This is another sop to the development industry by a legislature forever trying to find a way around the law.
Where this issue will now go is difficult to predict. Perhaps it will be litigated again in state court. Or it may be resolved in the federal circuit ala Boldt and Martinis.
If I were faced with the economic decision whether to develop in a watershed already over appropriated, I’d wait.
Ryan Knowlton
Jan 22, 2018I feel that the Hirst Decision was targeting the wrong users, as well as it left alot of people hanging with land they were no longer able to use. Not land that was to become giant apartment complexes or developments, but people with families that took everything they had to buy a few acre’s of residential land for one home, only to be told they can’t build their home on it now. That’s a bait and switch the likes of communist countries, and even then, the people that pulled that off in those countries would have a high probablity of coming up missing. How would you feel, if this decision was shifted to YOUR house in Bellingham? You’ve sold your other place, moved here and into your home, paid your hard earned money, only to have it deemed that Bellingham uses too much water from the Nooksack and it might be hurting the fish, so it’s being turned off. The city will be coming by to turn your water off and fill your meter box with cement. What then? That’s basically what this decision did to people.
The true science of things isn’t going to be able to point to rural housing and their wells in the end. The amount of water used, the high % of that which is then returned to the water table via the septic system, is actually going to prove the most efficient and the lowest effect on river levels. I’ll take wagers on it. The farmers of whatcom county and the city of Bellingham are going to be in the crosshairs as the heavy water users from a water source that is shrinking in summer months due to less runoff from reduced snowpack.
Overappropriated? We’ll it depends on how you look at it. 9 months of the year things here are absolutely soaking wet. The monies need to be used for retaining more water on a civil level.
The bill passed and the new fee’s collected are a start, that is all. It’s going to take alot of number crunching and information gathering to get things going in the right direction. We CAN accomodate the growth that is coming and accomodate the water needs for everyone and everything, this isn’t Arizona here. It is going to cost money, however, and a balance must be sustained taking into the account the water used for farms that create food and milk such that these farms aren’t driven out of business.
David Camp
Jan 23, 2018@Ryan Knowlton - good points all. As usual, it’s family smallholders with the least “use” of water who bear the brunt of regulation - sort of like TSA security theatre is implosed on those with the least likelihood of being a problem. Something must be done! And now it sort of has…..