Breaking News - Hirst Legislation

A few days ago, our Washington lawmakers passed a new bill (that has been signed by the governor), reversing the basic legal conclusion of the Supreme Court’s Hirst Decision regarding water availability. This is a better result than I had anticipated which can (at least in part) be attributed to efforts by the Washington Association of Realtors® to educate and therefore influence the legislature.

The final legislation (SB 6091) includes the following components: (Information below taken from an article by Bill Clarke, Director of Public Policy, Washington Association of Realtors®)

•    For local building permits and subdivision decisions, local governments do not have to review new exempt wells for “impairment “ of instream flows.

•    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. The limit is 950 gallons per day average annual use per connection; other basins (such as the Little Spokane); are up to 3,000 gallons per day while other basins (non –GMA counties or areas with no instream flow rules) can again operate under the 5,000 gallon per day exempt well limit.

•    Certain areas of the state are excluded from the bill and thus these exempt well allowances; Skagit Basin, Yakima Basin, (Kittitas, Yakima and parts of Benton County).

•    Existing wells are grandfathered, and deemed to have satisfied the requirements to have a legal water supply under the State Building Code.

•    The bill allows local governments to rely on existing DOE rules for purposes of meeting the requirements of the Growth Management Act.

•    There are no new mitigation or metering requirements tied to well construction or new building permits, and there is a one-time fee of $500.

•    In addition, local committees will be established to identify projects to offset impacts to instream flows.  The scope and composition of these committees varies by whether the county completed a Watershed Plan under the state’s Watershed Planning Act. Local committees may recommend rulemaking changes to DOE (Department of Ecology), but the committees themselves are not regulatory. DOE retains its current rulemaking authority. $300 million ($20 million per year over 15 years) is allocated to fund projects and local planning efforts to restore instream flows and aquatic habitat. Certain cities and water purveyors are allowed to proceed with water rights permitting, and a Legislative Task Force is established to make recommendations on how new water rights for municipalities can be mitigated.

Interpretation of case law will no longer be needed with this statutory path clearly delineated!