What to know about water rights as a residential well owner

Residential well owners are expected to make up the vast majority of people in Whatcom County to be directly impacted by a sweeping water rights lawsuit filed earlier this year. 

While the county has a number of different types of water rights, experts estimate that there could be as many as 20,000 permit-exempt wells. This means a property owner does not have a permit, certificate or claim to their water but is still entitled to the same rights and protections.

“There’s no paper that documents these,” said Jill Van Hulle, of Aspect Consulting, which was hired by Whatcom County to assist with water rights outreach. “Even though you don’t have a piece of paper, you still have a priority date which is associated with your date of first use.”

These well owners are subject to prior-appropriation, which is the idea that a water right holder’s priority is based on the date that water was first being put to use, with earlier users having superior rights.

The Department of Ecology filed the water rights lawsuit in Whatcom County Superior Court on May 1. In late August, the department submitted draft claim forms, but those must still be reviewed and approved by the court. The court is set to make a decision on the forms Dec. 3.

Users cannot file court claims until the forms are finalized. While Ecology expects to have the forms in the mail by early 2025, property owners will have up to one year to complete and return them.

The adjudication lawsuit, which covers the entire Nooksack Basin, as well as Sumas, Lake Whatcom, TenMile Creek, Point Roberts, Lummi Island and other watersheds, will determine whether each water right is legal, how much water can be used and what its priority will be during shortages.

“It’s important that court claims forms are submitted accurately so that we do not have large unaccounted impacts to the aquifers and streams,” said Robin McPherson, Ecology’s adjudication manager. “If water users fill out a form inaccurately, Ecology or the court might follow up for more information.” 

“If users fill out no form at all, they risk being left out entirely in the future,” she added.

While the court will review all water rights, including those held by farmers, local governments and tribes, as well as federal and state agencies, the county’s presentation this fall was designed to help residential well users navigate the process. 

The groundwater exemption that most well owners are operating under limits water use to 5,000 gallons per day and to half an acre of irrigation for homes. Those operating businesses on their property can irrigate more than half an acre, but are still limited to 5,000 gallons per day.

This would include all indoor usage and any commercial use. (However, that limit started to change for wells drilled after Jan. 19, 2018.)

Residential well owners who want to prepare for the process are encouraged to track down the following information: identify location of withdrawal, location of use, the current use, the highest past use, current area of irrigation, greatest areas of irrigation and the current first date of water use, which is often when the home was built or when the well was drilled.

For many people, that information is expected to be more than enough to navigate the process. This is especially the case for households that estimate they are using 500 gallons a day or less, and irrigating less than half an acre of land. They will be able to fill out a shorter section of the form.

In these cases, Ecology will ask the court to accept these claims without requiring owners to provide additional supporting materials to document their water rights.

The average family in the U.S. uses an estimated 300 gallons of water per day in their home, according to the Environmental Protection Agency. However, to help residents estimate how much water they’re actually using, Whatcom County Public Works released a residential water use calculator.

The simplified version of the calculator only asks for the number of people in a household, then multiples that by 60 gallons per person, which is an average, expected use. So, a household of eight people on a single well would likely be covered by the 500 gallons.

The calculator also provides a more detailed method of determining household usage, which includes questions such as how many showers are taken per day and how long those showers are on average.

Residential well users who believe they are using more than 500 gallons per day, or commercial users irrigating more than half an acre on the permit exemption, will be required to provide more details to explain their water use. This will include the purpose, history and specific area irrigated.

“Adjudication doesn’t change the 5,000 gallons per day permit exemption, but it will prioritize past uses depending on priority,” McPherson said.

This means that any property owner who is currently using 500 gallons per day or less may have — pending court approval — water rights to that amount dating back to first use. This allows for some baseline consistency between properties throughout the region, rather than a property-by-property quilt of varying water rights with different quantities for residential well owners.

They will still be able to use additional water up to 5,000 gallons per day for cottage industry uses, but those rights will be considered “junior” and given a lower priority.

“The hard truth is that there will not always be enough water for every possible use,” McPherson said. “The law prioritizes uses that are already underway to be fair to those who have invested in the use.”

Isaac Stone Simonelli is CDN’s enterprise/investigations reporter; reach him at isaacsimonelli@cascadiadaily.com; 360-922-3090 ext. 127.