Hirst Decision


In 2016, the Washington Supreme made a decision that changed how counties decide to approve or deny building permits that use wells for a water source. In the Whatcom County versus Hirst, Futurewise, et al. decision, more commonly known as the Hirst Decision (PDF), the court ruled that the county failed to comply with Growth Management Act requirements to protect water resources by relying on Department of Ecology findings rather than making an independent determination.

Prior to the ruling, wells were permit exempt because of their relative low usage, defined by the state Department of Ecology, which grants water rights as 5,000 gallons or fewer per day.

Under the Hirst Decision, persons wanting to build on rural property must prove water use won't extract one drop of water (referred to as "one molecule" standard) from either a protected river or stream or a senior water right holder.

Those opposing the decision argued that the ruling slowed or halted rural development by requiring property owners to conduct expensive studies to secure evidence of an adequate amount of legally available water.

On January 19, 2018, Governor Inslee signed SB 6091, known as the "Hirst fix" legislation. The Hirst fix legislation includes the following elements:

  • For local building permit and subdivision decisions, local governments do not have to review new exempt wells for "impairment" of instream flows. This reverses the basic legal conclusion of the Supreme Court's Hirst decision.
  • For projects in basins with Ecology-adopted exempt well limits or mitigation requirements, those rules still govern. in other basins, specific allowances for new wells are created in statute.
  • Certain areas of the state are excluded from the bill and thus these exempt well allowances: the Skagit Basin, and the Yakima Basin.
  • Existing wells are grandfathered, and deemed to have satisfied the requirement to have a legal water supply under the State Building Code.
  • The bill allows local governments to rely on existing Department of Ecology rules for purposes of meeting the requirements of the Growth Management Act (GMA).

This interactive Streamflow Restoration Map shows how the Hirst Fix is applied to individual areas. Much of Columbia County is located in Walla Walla WRIA 32 and the remainder of the County is listed as unregulated.

What does this mean for Columbia County?

WRIA 32 falls under post-2001 instream flow rules and and may continue to rely on existing Ecology rules to satisfy GMA requirements related to surface and groundwater resources. In general Columbia County has not been affected by Hirst legislation.

According to MRSC (Municipal Research and Services Center) Hirst legislation established regulations for instream flow rules adopted before 2001, which were generally silent as to permit-exempt wells.

Helpful resources:

Streamflow Map (PDF)
Instream flow Rules (PDF)
Overview of the "Hirst Fix"