Hirst Decision on Water Rights Indirectly Affects Key Peninsula


Sara Thompson, KP News

This map of the Key Peninsula indicates in brown where groundwater is unavailable for new year-round water supply and where PALS will require a hydrogeologist’s assessment before allowing a well to be drilled or a building permit to be approved. Courtesy Washington State Department of Ecology

State funding for three community projects on the Key Peninsula is on hold because of a dispute in the Legislature over water rights raised in the so-called Hirst decision.

The projects under consideration in the capital budget include renovations to the Longbranch Marina and the Key Peninsula Civic Center and funding for The Mustard Seed Project senior housing construction in Key Center. Improvements for the Penrose Park sewer and Minter Creek Hatchery intakes were also included.

The Legislature passed a $44 billion operating budget earlier this year without approving the $4 billion capital budget that pays for monitoring water quality, water supply and flood risk reduction infrastructure, among other capital facilities and programs, because of disagreement over how to address issues raised by the court.

The problem began in October 2016 when a state Supreme Court ruling known as Whatcom County vs. Hirst required counties to change how they review permit-exempt wells—domestic wells using less than 5,000 gallons a day—for building permits. In the ruling, commonly referred to as the Hirst decision, the court said that the county’s comprehensive plan failed to comply with the Washington State Growth Management Act (GMA) requirements to protect water resources.

Before the Hirst decision, many counties relied on guidelines from the state Department of Ecology to determine the availability of year-round water. The court, citing its decisions over the last decade as well as the language of the GMA, ruled that counties were responsible to make their own determinations about whether or not there was enough water physically and legally available to approve a building permit that would rely on a well.

As a result, many rural counties halted approval of well-drilling and building permits on property with wells that had been drilled but not used until they could clarify how the decision would impact development in their communities.

The Hirst decision did not halt permits on the Key Peninsula. Brad Harp, a program manager with the Tacoma-Pierce County Health Department, said the county has been monitoring water quality and water rights for years. TPCHD rules say there can be no new wells in designated Urban Growth Areas within the service areas of large public water systems, such as the one that supplies Key Center, or close to smaller water systems or individual wells without an evaluation by a hydrogeologist to assure that senior water rights won’t be affected. Pierce County Planning and Land Services requires a hydrogeologic evaluation for any new well if it is in a closed basin area as designated by the Department of Ecology.

“I worked on this issue in Olympia on behalf of the Washington State Association of Counties this session,” said Pierce County Councilman Derek Young. “Water rights are ultimately a state issue and for good reason—watersheds rarely obey our political boundaries. Counties must be able to rely on Ecology to set up appropriate mitigation and make availability decisions. Counties have neither the authority nor the capacity to take this duty over from the state.”

Brad Harp said there was another impact. “The TPCHD runs the Site Hazard Assessment Program to evaluate and work to help clean up hazardous spills that might impact water quality, and it involves at least 100 sites in a year. Funding comes from the state’s Local Toxics Control Account, which is part of the capital budget. With no capital budget, the program is closed. I am worried that our water quality could be adversely affected.”

A copy of the Hirst decision is available online at www.courts.wa.gov/opinions.

The Washington State Department of Ecology website details the history and issues surrounding the decision at ecy.wa.gov/programs/wr/rights/water-right-home.html.


Some History of Water Rights in Washington State

1917: Washington’s first water code covered only surface water appropriations, focusing on water diversion such as dams and irrigation.

1945: Groundwater code passed to protect senior water rights and the public welfare. Permit-exempt wells were established to encourage rural family farms.

1955: Water code updated to say water flow must be maintained to support fish and wildlife, provide recreation, and preserve scenic and aesthetic values and ensure water quality.

1969: Legislature authorized Department of Ecology to establish minimum instream flow to protect wildlife resources or recreational or aesthetic values. 1979: Water Resource Inventory Areas (WRIAs) established by the Department of Ecology delineating the 62 major watersheds in the state to better monitor water availability.

1985: Nooksack Rule developed by the Department of Ecology. It closed most streams in the watershed to new water right permits but allowed landowners to use permit-exempt wells in most of the area.

1990: The Growth Management Act passed by the Legislature after finding that uncoordinated and unplanned growth posed a threat to the environment, to economic development and to the quality of life in Washington. The GMA established state rules but focused on local control in the development of comprehensive plans. The Growth Management Hearings Board is established to determine whether or not any government agency has complied with the GMA.

2000s: A series of state Supreme Court decisions about water safety and supply including the Gold Star Resorts decision. This decision required Whatcom County to comply with the GMA’s requirement that the county’s rural element include measures to protect surface and groundwater resources. Whatcom County chose to use Nooksack Rule from 1985.

2016: The Hirst decision determined that Whatcom County was not complying with the GMA. The court reaffirmed the understanding that groundwater and surface water are linked, with each having an impact on the other. Of the 48 basins in Whatcom County, all had watercourses that fell below minimum instream flow goals at some point in the year, but only one was closed to all wells; the others were still open to permit-exempt wells. The Hirst decision stated: “Indeed, the county’s reliance on the Nooksack Rule turns the GMA goal of directing growth to urban areas upside down. The county’s comprehensive plan allows the unchecked growth of single domestic dwellings relying on permit-exempt wells in rural areas; this is precisely the ‘uncoordinated and unplanned growth’ that the Legislature found to ‘pose a threat to the environment, sustainable economic development and the health, safety and high quality of life enjoyed by residents of this state.’” [/box]