A developer in Whatcom County, Washington, proposes to build a 75-lot rural residential subdivision. Each lot will have its own individual permit-exempt domestic well. The county's comprehensive plan requires that the developer demonstrate adequate water supply before final plat approval. Following the Washington Supreme Court's ruling in Whatcom County v. Hirst (2016) and the subsequent passage of the Streamflow Restoration Act (RCW 90.94) in 2018, which of the following best describes the regulatory framework the developer must navigate?
Correct Answer
D) The developer must demonstrate that the proposed permit-exempt wells will have a de minimis impact on streamflows and existing water rights, or alternatively secure mitigation measures under RCW 90.94 to offset any impacts before the county may approve the final plat.
The Washington Supreme Court's 2016 Hirst decision held that Whatcom County could not rely solely on the Department of Ecology's permit-exempt well regulations to satisfy the Growth Management Act's requirement to demonstrate adequate water supply. Counties must independently evaluate whether proposed permit-exempt wells will impair senior water rights or instream flows. In response, the Legislature passed the Streamflow Restoration Act (RCW 90.94) in 2018, which established a framework for mitigation of permit-exempt well impacts, including requirements for water budget neutrality and mitigation projects. Developers relying on permit-exempt wells for subdivisions in affected areas must demonstrate de minimis impact or provide mitigation before county approval of final plats.
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