Al Latham just alerted me that a fellow from the Farm Bureau will be doing a presentation on the Hirst Decision (on building permits and water rights) and current legislative activity around exempt wells at the Chimacum Grange, 7pm Wed April 12.
What is the Hirst Decision? It’s an extremely important new ruling that addresses an ongoing battle over development vs. water rights. Let me copy from the Dept of Ecology web site:
“A recent Washington State Supreme Court decision has 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.
- New publication: Building Permits and Wells: Changes due to a recent court case – January 2017
- Domestic Water Availability Maps – Whatcom, Skagit and Pierce counties
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 what the Department of Ecology said 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, physically and legally, to approve a building permit that would rely on a well.
The case directly relates to Whatcom County but appears to set legal precedent that applies in 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.
- 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 your county determines that water is not legally available for your 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. Our priority will be to provide information about the status of stream closures and instream flows.
- Anyone with questions about how the decision affects them should contact their county government.