Supreme Court Requires Counties to Protect Instream Flows from Exempt Wells

A Review of the Hirst Decision

On October 6, 2016, the Washington Supreme Court ruled in Whatcom County v. Hirst that individual counties in Washington state, rather than the Department of Ecology (“Ecology”), bear the responsibility of ensuring that water is legally and actually available before permitting development. The decision requires counties to go beyond the minimum flow rules adopted by Ecology and conduct their own analysis as to the legal availability of water for rural development, including developments that intend to rely on permit-exempt wells. The Hirst decision squarely precludes the unchecked growth of single-family residences relying on permit-exempt wells in rural areas. The decision will have significant and lasting impacts on Washington water and land use law, as well as on future development within Washington state.

By Michelle A. Green – Jeffers, Danielson, Sonn & Aylward, P.S.

This article published in the Real Property, Probate & Trust Section of the Washington State Bar Association, Winter 2016-2017