March 2017 Bar Bulletin
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March 2017 Bar Bulletin

The Hirst Decision and Its Legislative Aftermath

By Kate Hambley


Last fall, the Washington Supreme Court issued a controversial Growth Management Act (GMA) decision — Whatcom County v. Hirst1 — that promises to have significant effect on rural development in the state. The decision holds that counties cannot rely on the Department of Ecology’s rules governing small, private wells (or “permit-
exempt” wells) in a watershed, but must independently determine whether water is legally available for development in rural areas.

Supporters of the decision say that it will protect senior water rights and curb sprawling development in rural areas. Opponents say that the decision infringes on Ecology’s role in water permitting, and that it will put an expensive burden on small developers and owner/builders to prove that water is available for their rural projects.


The Hirst decision is the latest in a series of disputes between Futurewise, a smart-growth advocacy group, and Whatcom County. Beginning in 2005, Futurewise challenged the policies for the rural areas in the county’s comprehensive plan. The challenges were largely successful.2

In response to those challenges, Whatcom County passed Ordinance 2012-032 in an attempt to bring the rural policies in its comprehensive plan into compliance with the GMA.

Relevant here, the amendments allowed applicants for subdivisions in rural areas to rely on “permit-exempt” wells, so long as the proposed subdivision “does not fall within the boundaries of an area where [Ecology] has determined by rule that water for development does not exist.” In essence, this ordinance deferred to Ecology’s judgments in implementing the state water rights system.

Washington water law follows the prior appropriation doctrine; junior rights holders cannot infringe on senior water rights.3 Under Washington’s water permitting system, applicants for new water rights must apply for a permit from the Department of Ecology.4 The Department will grant a permit if it determines that the use won’t infringe on existing water rights.5 Certain uses, including domestic withdrawals of fewer than 5,000 gallons per day, are exempt from the permit requirement.6

Under the Water Resources Act of 1971, Ecology can also establish minimum “instream flows” (i.e., water volumes that must remain in a river or stream in order to protect environmental values).7 Instream flows create an appropriative water right, and junior water rights holders cannot infringe on the right.8

Ecology established instream flows for the Nooksack watershed — also known as Water Resources Inventory Area (“WRIA”) 1 — in 1985 under its “Nooksack Rule.”9 Most of Whatcom County lies in WRIA 1. The Nooksack Rule closes most of the rivers and streams to new permits for at least part of the year, but it does not prohibit permit-exempt withdrawals.10

Therefore, within the Nooksack watershed, Ecology does not review permit-
exempt withdrawals at any point to determine if they are interfering with instream flows. Because the County’s ordinance deferred to Ecology’s judgments, permit-exempt withdrawals in rural areas of Whatcom County were not undergoing review at any point to determine whether they infringed on instream flows.

The Board and Court of Appeals Decisions

Eric Hirst, Laura Leigh Brakke, Wendy Harris, David Stalheim and Futurewise (collectively, Futurewise) challenged Ordinance 2012-032 before the Growth Management Hearings Board.11 They argued that the ordinance did not go far enough to protect the quality and quantity of groundwater under the GMA12 because instream flows in Whatcom County were not being met.13

The Growth Management Hearings Board found for Futurewise. It held that the ordinance did not comply with the GMA because it did not adequately protect quality and quantity of groundwater under the Act.14

The Court of Appeals reversed. It held that the Board incorrectly interpreted water law precedent, and that the County could defer to Ecology’s rule allowing permit-exempt withdrawals from the Nooksack watershed.15

The Supreme Court Decision

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