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 requirements to protect water resources. The ruling required the county to make an independent decision about legal water availability.
Washington state has a new streamflow restoration law in response to the “Hirst decision.” The law, Engrossed Substitute Senate Bill 6091, was passed on Jan. 18, 2018, and signed by Gov. Inslee the next day.
'Hirst decision' 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. The court decision changed that. Counties had to make their own decisions about whether there was enough water, both physically and legally, to approve any building permit that would rely on a well.
In response to the decision, several counties severely restricted approvals of subdivisions and building permits for houses relying on permit-exempt wells. Some counties required permit applicants to pursue expensive hydrogeological study before building.
Key points of the decision
- Science has shown that rivers and streams are generally connected to groundwater. In the decision, 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 determined that water was not legally available for a new use, the county would not be able to approve a building permit — even if a well was already drilled.