Understanding the Whatcom County vs. Hirst, Futurewise, et al. decision

Updated 01/19/2017

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.

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 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.

Impacts

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.

Key points

Questions and answers

I want to build using a well – what do I do now?

We recommend you start by talking with your county. Each county is interpreting and applying the court case differently.

If you live in an area affected by the new requirements from the court’s decision:

Talk with your county’s building, planning or health departments to find out if any of these options are available.

Where is water available for new homes in Whatcom and other counties?

For detailed information, contact your county’s building, planning or health departments. Upon request of county government staff, we are creating interactive maps to assist them in determining legal domestic water availability in their communities. The maps show where water is closed to new uses and areas where instream flows are not being met, based on our analyses. The maps are intended to be general guidance.

What is an instream flow rule?

An instream flow rule is a regulation adopted in the Washington Administrative Code to protect rivers, streams and other water bodies. The legislature directed us through state law to protect and preserve instream resources. One of the ways we fulfill this mandate is to set instream flows in rule.

Counties with Instream Flow Rules - December 2016

Why do some instream flow rules govern permit-exempt wells but others don’t?

We began adopting instream flow rules in 1976. Rules that were adopted before 2001 do not specifically govern permit-exempt uses of groundwater. This is the case with the Nooksack River rule in Whatcom County.

The instream flow rules developed since 2000 are much more comprehensive than their counterparts in the 1970s and early 1980s. These newer rules address the use of permit-exempt groundwater.

What about permit-exempt wells that started being used after an instream flow rule was established?

We view the court’s decision as going into effect starting on the date of the decision. Anyone who intends to develop their property, including those landowners who have a well but haven’t yet obtained a building permit, should contact their county to determine how the county is responding to the court decision.

What counts as a permit-exempt use of groundwater?

You need a water right permit or certificate from Ecology before withdrawing groundwater, but there are four exceptions for small uses:

Although these permit-exempt uses don’t require a water right permit, you are still subject to state water law.

What is mitigation?

Mitigation is offsetting water use to neutralize impact on protected water bodies. For example, mitigation could be offsetting the adverse impacts of a new withdrawal with an equal quantity of water from a water right that is senior to the instream flow rule. Water banks are used for mitigation in some parts of the state, but this option is not available everywhere. Recent Washington State Supreme Court cases have reduced our ability to find mitigation solutions.

Talk to your county about potential mitigation options in your area.

If I already drilled a well but haven’t yet built on my property, can I use that groundwater?

There are no restrictions on a property owner’s ability to drill a well. However, drilling a new well does not guarantee legal access to water. And, under the Hirst decision, counties may not be able to issue a building permit for legal use of a well if that use would impair an instream flow. Even those who already have a well on their property may not be able to build a home using that well.

Talk to your county building, planning or health departments if you have questions about drilling or using a new well.

What is my county doing? What is Ecology doing?

Your county may now be responsible for making their own water availability decision when considering a building permit. Contact your county’s building, planning or health departments to learn about:

We are working with counties and the Washington Association of Counties as they process the decision and determine their next steps. We will continue to provide technical assistance to counties to support their water availability decisions. Contact us to learn about:

Contacts

Northwest Region
Island, King, Kitsap, San Juan
Skagit and Snohomish counties
Tom Buroker
thomas.buroker@ecy.wa.gov
425-649-7010
  Southwest Region
Clallam, Clark, Cowlitz, Grays Harbor,
Jefferson, Lewis, Mason, Pacific, Pierce,
Skamania, Thurston and
Wahkiakum counties
Mike Gallagher
mike.gallagher@ecy.wa.gov
360-407-6058
  Central Region
Benton, Chelan, Douglas,
Kittitas, Klickitat, Okanogan
and Yakima counties
Trevor Hutton

trevor.hutton@ecy.wa.gov
509-454-4240
Northwest Region (Bellingham)
Whatcom County
Doug Allen
doug.allen@ecy.wa.gov
360-715-5200
  Eastern Region
Adams, Asotin, Columbia, Ferry,
Franklin, Garfield, Grant, Lincoln,
Pend Oreille, Spokane, Stevens,
Walla Walla and Whitman counties
Keith Stoffel
keith.stoffel@ecy.wa.gov
509-329-3464
  Communications/Media Contact
Kristin Johnson-Waggoner
kristin.johnson-waggoner@ecy.wa.gov
360-407-7139