Hirst Legislative Fix

Oct 31, 2018

Updated Through October 31, 2018

HIRST DECISION AND LEGISLATIVE FIX

Washington Department of Ecology is commencing work on implementing the legislative fix to the Hirst decision.  See the Summary and Background sections below for more details.  Moreover, WaDOE expects the Streamflow Restoration Funding Program and Net Ecological Benefit (NEB) guidance will be of interest to entities involved in protecting, restoring, and enhancing streamflows and instream resources. WaDOE would like to hear your input and feedback as it develops these two tools. WaDOE will host six two-hour public workshops in October, with the first hour dedicated to discussing the funding rule, followed by a discussion of the NEB guidance. If you have questions about the rulemaking, please contact Rebecca Inman at 360-407-6450 or Rebecca.Inman@ecy.wa.gov. If you have questions about the NEB guidance, please contact Annie Sawabini at 360-407-6878 or Annie.Sawabini@ecy.wa.gov.  The WaDOE Streamflow Restoration Implementation program lead for the Northwest Regional Office’s Watershed Restoration and Enhancement Committee (WRE Committee) for WRIAs 8 & 9 is Stephanie Potts (stephanie.potts@ecy.wa.gov or 425-649-7138), and for WRIA 7 is Ingria Jones (ingria.jones@ecy.wa.gov or 425-649-4210).  On October 15, 2018, Ms Potts announced that the Department selected the following environmental groups to serve on the Watershed Restoration and Enhancement Committees:

    • WRIA 7: Washington Water Trust

    • WRIA 8: Center for Environmental Law and Policy

    • WRIA 9: Center for Environmental Law and Policy

    • WRIA 10: Puyallup River Watershed Council

    • WRIA 12: Friends of Clover Creek

    • WRIA 13: Thurston Regional Planning Council- Salmon Recovery Lead Entity Coordinator

    • WRIA 14: South Puget Sound Salmon Enhancement Group

    • WRIA 15: Greater Peninsula Conservancy

SUMMARY

With an effective date of January 19, 2018, the Washington State Legislature enacted, and signed into law by Governor Inslee, 2018 Laws of Washington, Chapter 1 (ESSB 6091), that sets forth the legislative fix to the Washington Supreme Court’s Hirst decision.  The Hirst decision may be viewed here: Whatcom County v Hirst and the Legislature’s fix may be viewed here: Ch 1_Laws of 2018_ESSB 6091 .  At our September 10, 2018, meeting, the Department of Ecology’s Stacy McKinstry presented an overview of the implementation of this legislative fix; in pdf format it may be viewed here: RCW 90.94 Presentation_GMVUAC .  The Department’s Focus on the New Streamflow Restoration Law bulletin may be read here: WaDOE – Focus on New Streamflow Restoration Law – ESSB 6091 .  The Department has prepared and published interim guidance bulletins on several topics of interest; they may be read here:  WaDOE Recommendations for Water Use Estimates    WaDOE Initial Policy Interpretations    WaDOE Interim Guidance for Determining New Ecological Benefit .  WaDOE expects the Streamflow Restoration Funding Program and Net Ecological Benefit (NEB) guidance will be of interest to entities involved in protecting, restoring, and enhancing streamflows and instream resources. WaDOE would like to hear your input and feedback as it develops these two tools. WaDOE will host six two-hour public workshops in October, with the first hour dedicated to discussing the funding rule, followed by a discussion of the NEB guidance. King County’s interactive website presenting Water Service Requirements may be accessed here (website includes active links to additional resources): KC Water Service Requirements .

The WaDOE published its WRIA 8 WRE Committee Nomination Form that had to be submitted to it by Friday, September 21, 2018: WRIA 8-WREC Nomination Form – ag-enviro-building .  The GMVUAC was nominated to be the Environmental Interests organization for membership on the WRE Committee to represent WRIA 8 —> WRIA 8 – WREC Nomination – GMVUAC ; however, the WaDOE did not select GMVUAC and decided instead on the CELP, with Ms Potts stating that “the Center for Environmental Law and Policy [is] expected to represent the broader environmental community and also keep other environmental groups informed of the Committee’s work.”  Visit the Center for Environmental Law & Policy website for more information on this organization: CELP Website .  Read the CELP’s vision for instream flow restoration & enhancement and the regulation of private wells:  Water Management Strategies – June 2014 .  Read the following CELP bulletins to see its stated position and philosophy on private exempt groundwater wells and water rights in general:  Exempt Well Fact Sheet     Wells and Groundwater     Six Packs for Subdivisions – ENVLAW1998     Metering Water Use     Exempt Wells – Fall 2000     Exempt Wells Overview     Campbell Guinn Decision – Spring 2002 .

The foregoing WRE program must be read in light of Section 203(1) of ESSB 6091, that provides: “Unless requirements are otherwise specified in the applicable rules adopted under this chapter or chapter 90.22 or 90.54 RCW, potential impacts on a closed water body and potential impairment to an instream flow are authorized for new domestic groundwater withdrawals exempt from permitting under RCW 90.44.050 through compliance with the requirements established in this section.”  The Department’s “applicable rules” adopted for WRIA 8 are set forth in Chapter 173-508 WAC, and under WAC 173-508-080 the following express “Exemption” is provided: “(2) Domestic inhouse use for a single residence and stock watering, except that related to feedlots, shall be exempt from this chapter.”   [Statutory Authority: Chapters 90.22 and 90.54 RCW.  WSR 79-10-002 (Order DE 79-9), § 173-508-080, filed 9/6/79.]

BACKGROUND

In brief, the effect of the Hirst decision was to, in addressing what constitutes compliance by the applicant for a building permit with the requirements of RCW 19.27.097 (set forth in full hereinbelow) to provide ‘evidence of an adequate water supply for the intended use of the building’, impose on the applicant for a building/development permit the requirement to prove that, although water was legally available and exempt from groundwater withdrawal permit requirements pursuant to RCW 90.44.050 (set forth in full hereinbelow, but generally exempts domestic/agricultural groundwater withdrawals not exceeding 5,000 gpd and 1/2 acre of irrigation), water was also factually available and its proposed withdrawal of otherwise exempt quantities would not adversely affect other water sources, including surface water bodies.  What the legislative fix provides in brief is, subject to a number of regulatory studies and requirements and deadlines and depending within which designated Water Resource Inventory Area (WRIA) the well is located, groundwater withdrawals not exceeding an annual average of 950 – 3,000 gpd for domestic use, and otherwise exempt from permit requirements pursuant to RCW 90.44.050, are exempt from the Hirst decision’s requirement of proof in fact of no adverse affect.  See Laws of 2018, Ch. 1, Sections 202(1) and 202(5)(f)(ii).  However, an applicant will be required to pay a ‘fee’ of $500 to the permitting authority in order to receive the benefit of this exception.  Section 202(5)(f)(i).

Jill Dvorkin, attorney and legal consultant to the Municipal Research and Services Center (MRSC), has authored a very good summary of the new law and its WRIA-dependent requirements and limitations.  Read Ms Dvorkin’s article here: Legislature Addresses Whatcom County v Hirst (c) ; view the WRIA statewide map here: WRIA_Dept of Ecology – State Map ; and the Lake Washington-Cedar River Watershed map here: Lake Washington_Cedar River – WRIA 8 Map .  The majority of the current GMVUAC service area falls within WRIA 8 (otherwise exempt wells subject to $500 fee and 950 gpd limit). If you wish to confirm the WRIA in which your property is located, please use the following link: KC GIS WRIA Locator (by Parcel or Address) .

It will take some time to see how the legislative fix to the Hirst decision actually works in the real and practical world — the GMVUAC will do our best to keep the public apprised of regulatory progress on this matter.  Please visit our Citizen Surveys webpage to view the results of our 2017 Survey, and especially the public sentiments regarding the Hirst decision and the right to use water.  See Questions 14, 21 – 24.

RCW 19.27.097   Building permit application—Evidence of adequate water supply—Applicability—Exemption.  (1) Each applicant for a building permit of a building necessitating potable water shall provide evidence of an adequate water supply for the intended use of the building. Evidence may be in the form of a water right permit from the department of ecology, a letter from an approved water purveyor stating the ability to provide water, or another form sufficient to verify the existence of an adequate water supply. In addition to other authorities, the county or city may impose conditions on building permits requiring connection to an existing public water system where the existing system is willing and able to provide safe and reliable potable water to the applicant with reasonable economy and efficiency. An application for a water right shall not be sufficient proof of an adequate water supply.  (2) Within counties not required or not choosing to plan pursuant to RCW 36.70A.040, the county and the state may mutually determine those areas in the county in which the requirements of subsection (1) of this section shall not apply. The departments of health and ecology shall coordinate on the implementation of this section. Should the county and the state fail to mutually determine those areas to be designated pursuant to this subsection, the county may petition the department of enterprise services to mediate or, if necessary, make the determination.  (3) Buildings that do not need potable water facilities are exempt from the provisions of this section. The department of ecology, after consultation with local governments, may adopt rules to implement this section, which may recognize differences between high-growth and low-growth counties.  [ 2015 c 225 § 17; 2010 c 271 § 302; 1995 c 399 § 9; 1991 sp.s. c 32 § 28; 1990 1st ex.s. c 17 § 63.]

RCW 90.44.050     Permit to withdraw.   After June 6, 1945, no withdrawal of public groundwaters of the state shall be begun, nor shall any well or other works for such withdrawal be constructed, unless an application to appropriate such waters has been made to the department and a permit has been granted by it as herein provided: EXCEPT, HOWEVER, That any withdrawal of public groundwaters for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW 90.44.052, or for an industrial purpose in an amount not exceeding five thousand gallons a day, is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions of this chapter: PROVIDED, HOWEVER, That the department from time to time may require the person or agency making any such small withdrawal to furnish information as to the means for and the quantity of that withdrawal: PROVIDED, FURTHER, That at the option of the party making withdrawals of groundwaters of the state not exceeding five thousand gallons per day, applications under this section or declarations under RCW 90.44.090 may be filed and permits and certificates obtained in the same manner and under the same requirements as is in this chapter provided in the case of withdrawals in excess of five thousand gallons a day.  [ 2003 c 307 § 1; 1987 c 109 § 108; 1947 c 122 § 1; 1945 c 263 § 5; Rem. Supp. 1947 § 7400-5.]