Is Hirst really so bad?


Changes in Washington state water law were a prime topic for the Washington Legislature as it met several times (a regular session, and seemingly endless trailer ones) over the first half-plus of this year.

Those were prompted by what is called the Hirst decision, from last fall, delivered by the Washington Supreme Court.

Here’s the impact, and the need for legislation, from an editorial in the Tri-City Herald:

“Two hundred years of Western water rights history was tossed away last October when the state Supreme Court ruled — in what is now commonly known as the Hirst decision — that counties, in compliance to the state Growth Management Act, must bear the burden of ensuring there is enough water available before new wells can be drilled, otherwise building permits cannot be issued. We understand that too many wells could lead to a shortage of water, and we must protect the instream flow of creeks and streams. It makes sense to monitor and regulate our limited water supply. But previously, the state Department of Ecology had that responsibility — and the system worked well enough.”

That’s true, to the point that the state-run system worked reasonably well, and there was really no call (other than, arguably, legal) to change it.

And it is true that counties in Washington as in many other places are financially hard-pressed, not easily able to manage this additional task. That fact has led a large collection of building contractors, realtors and others to band together to press the legislature to do something about the Hirst decision – such as, preferably, in effect overturn it.

The case grew out of a specific rule by Ecology covering the Nooksack River in the northern part of the state. As the department recounted, “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.”

Local control, in other words; and not necessarily with no input from the state, but with local control.

And not over all of the state: “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.”

Concern is warranted, but this doesn’t necessarily seem to mean a crisis in terms of getting water rights properly handled. It seems almost more like a matter of proper administration.

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