I'm sorry to contact you with this on a Thursday morning, but really bad news can't wait. As you read below, please remember as we head into the election season, ELECTIONS MATTER!!
The Washington Supreme Court issued their decision in Hirst et al. vs. Whatcom County, WA Sup. Ct. No. 91475-3, earlier this morning. This case, you may recall, concerned Whatcom County's use of exempt wells to allow construction in the unincorporated portions of Whatcom County, particularly in areas where the watershed had not been closed. The County argued that it was able to rely on the Dept. of Ecology's determinations concerning water availability to make such decisions and to grant permits for construction where the water would be provided by an exempt well.
Futurewise, together with Eric Hirst and David Stalheim, challenged that ordinance and the corresponding provisions of the Whatcom County comprehensive plan. They argued that exempt wells were not appropriate in watersheds where the minimum instream flow was not met and, therefore, the County should not issue building permits where water is supplied via an exempt well in any such watershed.
The Court sided with the Hirst parties. You may read the decision HERE!
What does this mean? The implications of this decision are staggering. Even as I write this update, I can hear the Whatcom Planning Department grinding to halt.
Those of you with listings in the unincorporated portions of the County, you are going to want to look at those listings very carefully. If the listing is intended as a building site, you will want your sellers to verify the availability of water through a certificated water right, shares in a water association, or other established, documented permit process.
If your sellers have any questions whatsoever, it is advisable that your sellers contact a lawyer knowledgeable in water issues to provide them with an opinion concerning water availability. You may also contact Mark Personius, Assistant Director for Planning at the Whatcom County Planning Department, 360-778-5900, for further information (The Planning Department has not met with their legal counsel concerning this issue, so they may not have guidance available immediately).
Your local Association will be monitoring this situation very closely and working with the Washington REALTORS® in an effort to find a solution. We will be providing updates as available. We recognize that this may be a source of concern to both our members and our members' clients, but please be patient as we sort this out and try to provide you with solid advice on how to effectively deal with this situation.
Perry
Whatcom County Association of REALTORS®| www.wcar.net
