Skip to main content

That Was Fast! 2017 Washington Legislature Proposes Bills Responding to the Hirst Decision



Last week, my colleagues wrote about the Whatcom County v. Hirst decision by the Washington Supreme Court. As a consequence of Hirst, if public water is not available to serve a development, a county must independently verify that water from wells is available before it issues permits, even for single-family or small-development construction that, in the past, relied on permit-exempt wells. No longer can a county assume an adequate water supply, even if the Department of Ecology has not closed the basin to new development. This decision could interject uncertainty, delay, and cost into the land use permitting process.

In response, legislators have introduced Senate Bill 5239 with the finding that “the Hirst opinion imposes new requirements that create substantial hardships for property owners who rely on water drawn from wells to support reasonable uses of their property, and that such requirements threaten to halt economic development throughout the state, especially in rural areas.” The bill also notes that permit-exempt groundwater withdrawals account for less than 1 percent of the total water used in Washington, making the added regulatory burden imposed by Hirst unnecessary. At the heart of SB 5239 is the provision that allows counties to issue building permits, if the proposed groundwater withdrawal is exempt from permitting by the Department of Ecology. The county or city can rely on Ecology’s water resources management rules in making this determination. This bill is currently in committee.

In the other chamber, the House introduced House Bill 1382, covering the same topic, but from a different angle. This bill creates a presumption that a groundwater withdrawal that is exempt from Ecology permitting will not affect or impair certain standards established for minimum water flows and the levels of surface water bodies. This presumption can be overcome if there is “conclusive information” based on site-specific groundwater testing and objective, measurable data of an adverse effect on these water resources, but the person requesting the groundwater withdrawal is not required to support or rebut the presumption. In addition, counties cannot delay issuance of permits based on the lack of the conclusive information rebutting the presumption of no adverse impact to water resources. This bill is also in committee.

Given the press that the Hirst decision received, and the widespread questions or concerns from property owners, developers, and planning staffs about the decision’s impact, our prediction is that a law will likely emerge from this session, or, at the very least, guidance from the Department of Ecology.

  Edit this post