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HIRST Decision Explained

Who Owns The Water

To use groundwater in Washington state you must obtain a permit first. State law says that all water belongs to the State unless owned by a Tribe. This permit needed is called a “water right” and must be obtained from the Department of Ecology. Permit exempt wells are an exception. This exemption is for wells that are for supplying water to rural homes or businesses.

Hirst Decision

The Hirst decision from Oct. 2016 ruled that small withdrawals of groundwater added up and deprived rivers of water for fish, wildlife and scenery. The ruling meant prospective homeowners may have had to finance expensive studies to prove their wells wouldn’t harm existing water rights. (1) The Hirst decision changed how counties were required to approve building permits that used exempt wells for their water. Counties suddenly had to determine if a new home connecting to a well would harm instream flows for fish. This created a hardship for many local governments in trying to comply with the law. Permits were refused or restricted for new construction when wells were necessary.

SB6091

In January the Governor signed SB6091 which reversed the HIRST decision. Under SB 6091, local governments are no longer required to review new private wells for “impairment” of other water rights or state instream flows.  In addition, the new law clarifies that local governments may rely on or refer to Department of Ecology’s water resource regulations in order to comply with the Growth Management Act. (2)

Benton and Franklin County WRIA’s

Benton County includes three WRIA’s (Water Resource Inventory Area): Lower Yakima, Rock-Glade, and Esquatzel Coulee WRIA’s. Franklin County includes WRIA’s Esquatzel Coulee and Lower Snake.

The Yakima WRIA falls under the category of, “Other Requirements Apply ((ESSB 6091 – Sections 101(e) and 101(f)).” There are no new regulations and they are exempt from the bill.

All other WRIA’s in Benton and Franklin Counties fall under the category, “No Instream Flow Rule (ESSB 6091 – Section 101(g))” required. There are no new regulations or restrictions and they can use the currently law that allows up to 5,000gpd.

Department of Ecology Summary and Map

The Department of Ecology recently issued a summary of statewide water availability requirements in light of the new bill. This map shows the county boundaries as well as the water resource inventory areas.

Results of the new bill:

  • It allows rural residents to have permit-exempt wells to access water to build a home.
  • Well construction and new building permits have no new metering requirements and no new mitigation required.
  • There is a one-time fee of $500 for permit-exempt wells for landowners building a home.
  • Existing wells are grandfathered and are deemed to have satisfied the requirement.
  • For purposes of meeting the requirements of the Growth Management Act the bill allows local governments to rely on the existing Department of Ecology rules.
  • It invests $300 million over the next 15 years in projects that will help fish and stream flows.
  •  Individuals who need assistance should seek legal counsel or review by a qualified consultant.

Local County Contacts

Benton County:

Trevor Hutton
trevor.hutton@ecy.wa.gov
509-454-4240

Franklin County:

Keith Stoffel
keith.stoffel@ecy.wa.gov
509-329-3464

Further questions on the Hirst Decision can be emailed to Bill Clarke, Director of Public Policy
Washington REALTORS®.

Public Resources:

Full Reading of Engrossed Substitute Senate Bill 6091

County Map with Water Resource Inventory Area’s

Washington Water Policy break down of exempt well allowances

Dept of Ecology summary of the Hirst Decision Fix including a pdf map of where the new law applies

Dept of Ecology summary of the Hirst Decision as well as contact information by county

As always, thanks for reading and we welcome any additional information or comments you may have.

Sources:

(1) http://www.capitalpress.com/Washington/20161202/battle-lines-drawn-in-washington-over-new-wells

(2) https://www.warealtor.org/resources/media/news-articles/2018/01/29/broker-alert-hirst-water-supply-legislation-passes

https://www.warealtor.org/government/hirst-decision-update

http://www.nwrealtor.com/2018/02/07/the-hirst-fix-important-resources-for-your-clients/

https://ecology.wa.gov/Water-Shorelines/Water-supply/Water-rights/Case-law/Hirst-decision

https://ecology.wa.gov/Water-Shorelines/Water-supply/Streamflow-restoration

https://fortress.wa.gov/ecy/wrx/wrx/fsvr/ecylcyfsvrxfile/WaterRights/wrwebpdf/essb6091-dpew-map.pdf

https://naiads.blog/category/land-use/

https://www.warealtor.org/resources/media/news-articles/2018/01/19/good-news-on-hirst

Posted by: everstar on February 15, 2018
Posted in: Uncategorized