A long-awaited fix to the 2016 Washington State Supreme Court decision, Whatcom County v. Hirst, et al, (“the Hirst decision”), Senate Bill 6091 was signed by Governor Inslee on Jan. 20. The Hirst fix is a result of a bipartisan compromise by the state Legislature to secure water rights for rural development while investing $300 million on water conservation projects throughout the state.
For years, rural landowners in Washington relied upon an exemption in the water code that allowed landowners to drill permit-exempt wells to supply their homes with domestic and limited irrigation water up to 5,000 gallons per day.
Counties relied on these permit-exempt wells to approve building permits and, in certain situations, subdivision applications. In the Hirst decision, the Supreme Court ruled that, under the Growth Management Act (GMA), counties had an independent duty to determine water availability prior to issuing building permits or subdivision approvals. The court’s decision was based on the assumption that each new well draws water from streams and harms fish.
The Hirst decision effectively restricted counties from granting building permits and subdivision applications that relied upon permit-exempt wells for water supply if the well would impair a minimum, instream flow or more senior water rights.
Instream flow rules are rules adopted by the Department of Ecology to ensure minimum river and stream flows at levels sufficient for fish. The Hirst decision instructed the counties to go beyond the instream flow rules adopted by Ecology and conduct their own analysis to determine legal availability of water for rural development. The ruling left individual landowners in the position of having to prove that their new wells did not reduce instream flows or affect senior water rights. Those water availability analyses are prohibitively expensive.
Some counties, like Chelan County, suffered little negative effect from the Hirst decision because of prior legislative actions approving reserves within the Wenatchee watershed or Water Resource Inventory Area (WRIA). Other counties did not fare quite as well, and many counties issued moratoriums on issuing building permits after Hirst.
The Hirst fix returns most counties located within 41 WRIAs to the pre-Hirst reliance on the 5,000 gallon per day permit-exempt wells for approval of building permits and subdivision applications. Locally, we can expect to return to the pre-Hirst reliance on permit-exempt wells with no new fees or limitations on withdrawals. However, other WRIAs are subject to new restrictions under the new law.
In seven WRIAs (the Nooksack, Nisqually, Lower Chehalis and Upper Chehalis in Western Washington and the Okanogan, Little Spokane and Colville in Eastern Washington) landowners will pay a new $500 fee to drill a well and average annual withdrawals will be limited to 3,000 gallons a day. The law requires that watershed-management plans must be updated for these WRIAs.
In eight watersheds (Snohomish, Cedar-Sammamish, Duwamish-Green, Puyallup-White, Chambers-Clover, Deschutes, Kennedy Goldsborough and Kitsap, all in Western Washington) landowners will pay a $500 fee to drill a well and will be limited to withdrawals of 950 gallons a day. In these WRIAs, committees made up of state and local governments, tribes and interest groups, including agriculture, will recommend fish projects that could change fees and withdrawal limits.
The law sets aside $300 million over a 15-year period for projects to restore and enhance watersheds, in an effort to mitigate the effects of permit-exempt wells. One potentially controversial component of the bill is a pilot project in parts of Clallam and Kittitas counties authorizing Ecology to require meters on new wells. Some fear the pilot project could lead to a push to require meters on other rural wells.
The law also begins to address a mitigation conundrum created by another Court ruling, Foster v. Yelm, which restricted the types of mitigation available to projects seeking to provide mitigation for new water withdrawals. The bill authorizes creation of a joint legislative task force to review the Foster decision and implement pilot projects that may include different types of mitigation.
Erin McCool is a member in the Wenatchee office of Ogden, Murphy, Wallace, PLLC practicing in the areas of land use and water law, litigation, and employment and labor law. You can reach Erin or Pete Fraley at 509-662-1954 with any questions regarding the new Hirst legislation.