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Hirst decision

A 2016 Washington State Supreme Court decision changed how counties decide to approve or deny building permits that use wells for a water source.

In the Whatcom County vs. Hirst, Futurewise, et al. decision (often referred to as the Hirst decision), the court ruled that the county failed to comply with the Growth Management Act (GMA) requirements to protect water resources. The ruling requires the county to make an independent decision about legal water availability.

Although the Legislature debated solutions to address the impacts from the Hirst decision during the 2017 session, they were unable to reach an agreement on legal changes and did not pass any related legislation. We will continue providing assistance to property owners, local governments, businesses and others who seek information on the use of exempt wells.

Impacts

While the case directly relates to Whatcom County, it appears to set legal precedent that applies to other counties where there are instream flow rules that were not intended to regulate permit-exempt water uses. It is unclear how the decision affects areas of the state where there are no instream flow rules. Counties are working to review the decision and what it means for them. Contact your county’s building, planning, or health departments if you have questions about how the Hirst decision may affect you.

Background

We protect rivers and streams across the state by creating instream flow rules, which set the amount of water necessary for protecting fish, wildlife, and recreation. In 1985, we adopted an instream flow rule for the Nooksack River (WAC 173-501) in Whatcom County. This rule closed most streams in the watershed to new water right permits but allowed landowners to use permit-exempt wells in most of the area. Whatcom County’s development regulations followed our instream flow rule.

A reliable, year-round supply of water is necessary for new homes or developments. Before the Oct. 6, 2016, court decision, many counties relied on our determination about whether year-round water was available. This court decision changes that. Counties now have to make their own decisions about whether there is enough water, both physically and legally, to approve any building permit that would rely on a well.

Key points

  • Science has shown that rivers and streams are generally connected to groundwater. The Washington State Supreme Court said that water is not legally available if a new well would impact a protected river or stream, or an existing senior water right.
  • If a county determines that water is not legally available for a new use, the county would not be able to approve your building permit — even if you have already drilled a well.
  • We are providing technical assistance to counties as they determine their next steps.
  • Anyone with questions about how the decision affects them should contact their county government.

Questions and answers

I want to build using a well – what do I do now? If I already drilled a well but haven’t yet built on my property, can I use that groundwater? What about permit-exempt wells that started being used after an instream flow rule was established? What counts as a permit-exempt use of groundwater? What is mitigation? Where is water available for new homes in Whatcom and other counties? Why do some instream flow rules govern permit-exempt wells but others don’t? What is my county doing? What is Ecology doing?