In May 2024, Ecology filed a Petition for Adjudication (the “Petition”) in the Whatcom County Superior Court to adjudicate all claims of a water right in WRIA 1 (“Adjudication”).  In anticipation of the pending water rights adjudication, the Washington Department of Ecology (“Ecology”) has been holding community meetings all over the County in an effort to prepare them for the upcoming Adjudication.  The Adjudication will involve everyone who claims a right to withdraw water from a permit-exempt or non-permit-exempt well or diverts water from a surface waterbody.

While permit-exempt wells are a unique facet of Washington water law, well-owners throughout the County should be preparing for the Adjudication alongside their surface-water appropriating neighbors.

 What is a Permit-Exempt Well?

 Up until January 2018, in order to qualify as a permit-exempt well, the well must have been drilled before January 19, 2018, and is limited to a daily maximum withdrawal of five thousand (5,000) gallons per day (“GPD”) for domestic use, including no more than one-half (1/2) acre of lawn and garden irrigation, and unlimited stock watering.  RCW 90.44.050.   For wells drilled after January 19, 2018, or building permits issued before June 27, 2020, the Washington Legislature imposes slightly more limited water use requirements on would-be permit-exempt wells.  These wells are again limited to five thousand (5,000) GPD including no more than one-half (1/2) acre of irrigation; however, they are further required to withdraw an annual average of 3,000 GPD.  RCW 90.94.020.  Wells drilled after June 26, 2020, are subject to even more restrictive use: five hundred (500) GPD for indoor use and no more than one-twelfth (1/12) an acre of irrigation.  WAC 173-501-065.

An additional wrinkle to these limitations exists where the groundwater well is shared by more than one residence.  In these scenarios, the statutory and regulatory water usage restrictions do not increase; rather, they are measured as a combined amount, not by the individual residence.

What Does “Permit-Exempt” Really Mean?

 The concept of a permit-exempt well goes back to 1945 when the Washington Legislature first established the Groundwater Code, Chapter 90.44 RCW.  Often misleading, however, the term “permit-exempt” does not also mean that the well’s usage is exempt from all of Washington water law.  For example, Ecology regulates permit exempt water users when their use interferes with older, “senior” water rights, including instream flow rules.

What if My Daily Water Use Exceeds the Limitations for a Permit-Exempt Well?

 If the water usage exceeds the limitations attached to permit-exempt wells, in order to secure a right to use the water, an application for a water right certificate must be filed with Ecology.  If the well-user does not apply for a water right certificate, they have no legal right or claim to use the water.  Unauthorized water use may also result in fines up to Five Thousand Dollars ($5,000.00) per day from Ecology.

Prior to applying for a water right, Ecology has indicated its strong preference for would-be applicants to first take part in what is called a “Pre-Application Conference” with the agency to help determine whether an application is in fact necessary or what, if any, additional information is needed for the application prior to its submittal.

If you have questions regarding your water right(s) or the upcoming Adjudication, please contact Sara Frase or Jon Sitkin of our Water Law Practice Group via email at sfrase@csdlaw.com, or jsitkin@csdlaw.com or via telephone at (360) 671-1796.