The state Supreme Court’s Hirst decision

Last fall, the court issued its decision in the Whatcom County v. Hirst case, which involved a complicated dispute over how different groups can claim water rights in this state.

The court ignored existing state law and made several controversial conclusions in its Hirst decision. (Technically, the decision only applies to the facts involved in the lawsuit. But most legal experts believe the decision will apply broadly around the state).

First, the court ruled that counties—which usually issue building permits—cannot rely on water-use standards established by the state Department of Ecology when they make permitting decisions. The counties are on their own … and are liable for any bad results … when they issue building permits.

Second, the court ruled that residential wells, which have traditionally not required a water permit from the state, are not exempt and may require some form of permit. (And, again, counties are liable for specific permitting decisions — but, if they issue a building permit that negatively impacts local water tables, they're liable for damages.)

Third, the court implied without quite saying that one element of permitting residential wells may be attaching meters to those wells.

All three of those conclusions are bad for this part of the state. And any part of the state where a significant number of homes use permit-exempt residential wells. The Hirst decision has basically halted new building — residential and commercial — in rural areas. In almost six months since the decision was released, some counties have simply stopped issuing new building permits because they are uncertain whether “exempt” wells are really exempt any more. Other counties are requiring expensive hydrological studies to be completed before they'll issue building permits for even modest houses.

Clearly, the state government needs to take some action — and probably pass some legislation — that clears up the confusion caused by the Hirst decision. We can do that. But will we? There's good news and bad news on that front.

The good news is that reasonable people from all over the political spectrum and both sides of the aisle in the Legislature want to fix Hirst. The bad news is that a vocal minority in the Legislature and from Seattle political circles do not.

In the early months of this year, various legislators in Olympia produced bills that — in different ways — addressed the problems caused by Hirst. Some tried using a short amount of very broad language, others tried using lots of very specific language. Most of these bills got caught in technical issues at the committee review stage in the legislative process and never got to the floor of either chamber.

Right now, we're left with one “live” bill that addresses the confusion caused by the Hirst decision. Senate Bill 5239, sponsored by Sen. Judy Warnick of Moses Lake, rewrites and clarifies state law to defend residential exempt wells and fixes other problems caused by Hirst. SB 5239 has been approved by the state Senate and is waiting for a vote in the state House.

The vocal minority that likes the Hirst decision does not like Warnick's bill. And, so, Gov. Inslee's Department of Ecology is shopping around a bill that would confirm much of the Hirst decision but would allow some residential wells, as long as property owners pay a new state fee (in the thousands of dollars) and—if the properties being developed are larger than a half acre—agree to have their “exempt” wells metered.

You may have heard talk of a growing “rural-urban divide” in Washington. If you're looking for an example of that divide, just ask people you know: Should “exempt” residential wells be metered?

Even if you are hooked up to a city water system, you have an interest in protecting residential exempt wells. Our part of the state relies on them. And restricting their availability will impact real estate markets and property values all around our region. We need a “Hirst fix” soon. This year.

I support SB 5239 as the best available solution to the problems caused by the Hirst decision. But I'm also open to other reasonable suggestions about how we can clear up the confusion that the state supreme court has caused. Unfortunately, suggestions that involve thousands of dollars in permitting fees or metered “exempt” residential wells are not—in my opinion—reasonable.

This state's statutes and traditions have long held that exempt means exempt. From permits and meters.

State Representative Jim Walsh, 19th Legislative District
428 John L. O'Brien Building | P.O. Box 40600 | Olympia, WA 98504-0600
(360) 485-0547 | Toll-free: (800) 562-6000