Last month, after months of delay that even stopped Washington state’s capital budget from passing, the Washington State House and Senate passed ESSB 6091 to address legal water availability issues for exempt well users stemming from the landmark Whatcom County v. Hirst case. Because of the complexity of implementing the new law, it is too soon to know all of the consequences of this proposed fix. However, here are several early takeaways:
What it means
- In many, but not all, areas of the state, the new law allows building permits relying on exempt wells in areas with instream flows to be approved by local jurisdictions without reviewing each case for impairment considerations.
- Overall impairment to instream flows caused collectively by new exempt wells is to be addressed through restarting the watershed planning process in Water Resource Inventory Areas (WRIAs) with no adopted Watershed Plan, or through an update of existing adopted Watershed Plans.
- Plan recommendations to improve streamflows may include, among other options, acquiring senior water rights, water conservation, water reuse, off-channel storage, and aquifer recharge.
- Several watersheds were specifically excluded from the law based on other regulatory considerations, including:
- Watersheds with instream flow rules that explicitly regulate exempt wells and provide for reserves, such as the Stillaguamish, Methow, and Wenatchee basins. These watersheds must rely on the finite reserves of water already allocated.
- Federally regulated watersheds (Yakima basin).
How we got here
Under existing state 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. In October of 2016, 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) ruled in the Whatcom County v. Hirst case that the Growth Management Act (GMA) placed an independent responsibility to ensure water availability on counties, not on Ecology. Counties across the state had varying responses to the decision, with some placing a moratorium on granting building permits relying on unmitigated exempt wells, others including disclaimers on proof of legal water availability, and others taking a wait and see approach.
New $500 fee and new Exempt Well Use Limitations
The new Bill 6091 requires a new $500 fee to be paid as part of obtaining a building permit relying on an exempt well, to support watershed planning efforts. In basins with adopted Watershed Plans, the law allows an exempt well to use a maximum average of 3,000 gallons per day, while in basins with no watershed plan, a limitation of 950 gallons per day is imposed.
Understanding of Bill 6091 Still Evolving
The Washington Department of Ecology is responsible for implementing ESSB 6091, and is still formulating relevant policy. As general understanding and consensus evolves, Aspect will continue to comment on this for clients.
The following link provides the Washington Department of Ecology’s Initial Policy Interpretations on ESSB 6091:https://fortress.wa.gov/ecy/wrx/wrx/fsvr/ecylcyfsvrxfile/WaterRights/wrwebpdf/6091-EcologyPolicyInterpretations.pdf
The following link provides the Hirst Supreme Court Decision:https://fortress.wa.gov/ecy/wrx/wrx/fsvr/ecylcyfsvrxfile/WaterRights/wrwebpdf/91475-3opinion.pdf