The Hirst Decision
William Shadbolt | RHAWA Board President
If falls on our heads (a little more often than most of us would like during the winter) and we’re surrounded by it in the sound, sea, rivers, streams and lakes but water is still a precious resource.
In the last year we’ve heard a lot about “Hirst” as it held up the $4.1 billion Capital Budget for the State. What is Hirst, what are its effects, and what was the resolution?
The Hirst Decision
In October 2016 in Whatcom County vs. Hirst et al., the State Supreme Court ruled that the county had a requirement under the Growth Management Act to protect water and they had to make an independent assessment of water availability. Prior to that most counties in the State relied on the Department of Ecology to make that assessment. After the decision, before issuing a building permit, counties required proof that water was physically and legally available. Many counties required even permit exempt wells to prove water was available and some required an expensive hydrogeological study before permit exempt wells could be drilled.
Permit Exempt Wells
In 1945, the State passed the Groundwater Code (RCW 90.44) that required a permit to withdraw water. As part of that act it exempted 4 circumstances:
Domestic use up to 5,000 gallons a day
Industrial use up to 5,000 gallons a day
Irrigation of lawn and non-commercial gardens up to half an acre
Stock-watering (water for farm animals)
Obviously virtually all homes use less that 5,000 gallons a day and so used a permit exempt well when they could not connect to a water company supply. With Hirst this came to an abrupt halt.
Effect of Hirst
The impact was mainly felt in rural areas of our state where people who had saved up to build their homes suddenly found that they either couldn’t build or the cost and time had increased massively.
At first this was seen as a ‘rural’ issue as most suburbs are covered by a water company. However, it was quickly seen as a both a rural and urban issue. If rural development wasn’t allowed or became cost prohibitive, then rural tax parcels would logically become worth very little. As the tax assessed value of rural parcels drop the burden of property taxes would shift to the urban areas of counties.
During 2017 the $4.1 billion State Capital Budget was held up as legislators in districts impacted fought to resolve the issue.
Perhaps the easy way to explain the impact is through an example. Last year I entered into escrow to purchase some undeveloped land in rural King County. The parcel had an existing well and well covenant recorded with the County. Given there was an existing well, a reasonable person would expect that you had water available. However the Hirst decision was for the issuance of the building permit and not authorizing the well.
My first step was with the Department of Ecology. Even though the parcel was in King County, it was in the Kitsap watershed. Only 3 out of 39 counties had water availability maps online with the Department of Ecology, King County was not one of them. My next step was with King County Department of Permitting and Environmental Review. After a lengthy phone call, I was told that the county would issue a building permit but it would be stamped with “No Guarantee of Water Availability”. So I could build but may not be able to use it for lack of water.
In 2017 several lenders announced that they were stopping lending on properties without water availability. Washington Federal wrote in an internal memo:
“Starting August 1, until further notice, Washington Federal will not be lending on properties in the State of Washington that have had wells drilled after October 6, 2016. This is a result of the Hirst Decision and the uncertainty it has created with water rights,”
The Resolution
On January 18, 2018 Engrossed Substitute Senate Bill 6091 was passed and the Governor signed it the next day. Neither side was 100% happy.
The Department of Ecology summary of the new law:
The law focuses on 15 watersheds that were impacted by the Hirst decision and also establishes standards for rural residential permit-exempt wells in the rest of the state. The law divides the 15 basins into those that have a previously adopted watershed plan and those that did not.
The law allows counties to rely on our instream flow rules in preparing comprehensive plans and development regulations and for water availability determination.
It allows rural residents to have access to water from permit-exempt wells to build a home.
It lays out these interim standards that will apply until local committees develop plans to be adopted into rule:
Allows a maximum of 950 or 3,000 gallons per day for domestic water use, depending on the watershed.
Establishes a one-time $500 fee for landowners building a home using a permit-exempt well in the affected areas.
It retains the current maximum of 5,000 gallons per day limit for permit-exempt domestic water use in watersheds that do not have existing instream flow rules.
It invests $300 million over the next 15 years in projects that will help fish and streamflows.
As you can see a significant part of the law deals with the watershed plans. Given the Watershed Planning Act was enacted in 1997 and only 7 of the 15 impacted basins have adopted watershed plans, the law should accelerate the others to adopt theirs.
The new law tries to balance the needs of the people in the State to be able to build in rural areas with the ecological and tribal concerns.
