The Washington Supreme Court's October 2016 decision in Whatcom County v. Western Washington Growth Management Hearings Board, 186 Wn.2d 648, 381 P.3d 1 (2016) (" Hirst") has resulted in a great deal of discussion and concern. The decision has been painted as creating a "moratorium" on construction in rural areas, and the outcry has included calls for a legislative "fix" in order to allow unabated construction in rural areas. Much of this angst is misdirected. Any lack of water availability existed before the decision, rather than being created by it. Hirst simply affirms existing Washington water law and requires that it actually be enforced. In order to put the controversy in perspective, it is important to look at what Hirst actually says.

Water law in Washington (and indeed the entire West) is based on the bedrock principle that "first in time is first in right." This is based on the undeniable fact that there is not, will not, and logically cannot be enough water to allow all possible uses without restriction. Under this principle it is new ("junior") users who are to bear the burden of any water shortage, not older ("senior") users. This is true for agricultural users, for cities, for instream flows established to protect fish and wildlife, and for residential use relying on domestic wells. A person who wishes to start a new use of water generally must apply for a permit; review of the application includes a determination of whether the new use would interfere with existing users. However, a provision in Washington law that exempts small domestic well use from the requirement to obtain a permit has resulted in such rural residential use largely being ignored by the regulatory system.  

That may have been all well and good when the demand for water was far less than the supply. But it is not tenable now that essentially all of Washington's water has been spoken for. Permit-exempt wells can and do affect senior users; it is known that they affect streamflows, and there are now reports (including from Whatcom County) that new permit-exempt wells have reduced production from more senior users' wells. 

Hirst dealt with the intersection of water law and another form of development regulation: the Growth Management Act (GMA). The GMA was enacted in order to control sprawling development, and requires that certain counties develop master plans to ensure development is channeled into areas with appropriate resources. One provision of the GMA requires that a county's plan include "rural elements," which require protection of, among other resources, groundwater resources. Hirst involves a challenge to Whatcom County's GMA planning. The Nooksack River is the largest in Whatcom County and is critically over-appropriated. Ecology established an instream flow rule for the Nooksack in 1985, but the rule neither bars use of groundwater from permit-exempt wells nor specifically allows such uses. In lieu of actually determining whether groundwater was available for development in various parts of the county (in order to protect the resource), Whatcom County simply "incorporated" Ecology's Rule.  Because Ecology's rule did not specifically address the use of permit-exempt wells, Whatcom County inferred that their unrestricted use was permissible in most of the county. The net result was that no one ever looked at how permit-exempt wells would affect groundwater and streamflows, and that anyone who wished to sink a well was granted a building permit. The Hirst plaintiffs asked the court to invalidate the County's plan and to hold that the Plan's (non)provisions for protection of rural water supplies were deficient. The Court agreed, and ruled that the County was indeed responsible for determining that water was actually and legally available before issuing a building permit. 

Hirst is really nothing more than a statement that existing water law will be followed.  In other words, someone must actually make sure that a new withdrawal of water would not impair senior users. This should not be controversial. Objections to the decision come from two major directions.  First, counties do not want to be responsible for making case-by-case determinations of water availability, and they (perhaps rightly) argue that landowners alone should not bear the cost of a hydrogeologist's study.  Justice Madsen's concurring opinion recognized this issue, and suggested that the state and the counties should work together to determine water availability.  Hirst, 186 Wn.2d at 696-700. As the steward of the state's water resources, Ecology is clearly in the better position to provide this information. Second, there will be places where unmitigated water use cannot or should not be allowed, and landowners object to the end of "free" water. But this is not because the Court decided to stop rural development. The simple fact is that water is limited and in many areas it has all been spoken for. This was true before Hirst, and it will remain true even if the Legislature were to attempt a "fix." A county's growth management plan needs to account for this reality, even it ultimately means that some areas are not suitable for residential development.

So how are counties and would-be homebuilders to proceed? One option is to mitigate new water use, to avoid any impairment of streamflows or other senior users. Water banking, in which senior, usually agricultural, water rights are purchased and placed in trust as instream flows, is being used to provide mitigation. The instream flow protection rule for the Dungeness River Basin (Chapter 173-518 WAC) incorporates water banking as a preferred strategy to mitigate new water use, and new homes are being constructed in the Basin. Water banking has also been successfully applied in the Kittitas Valley, where water shortages are a long-standing reality.

It may be tempting to look for a quick legislative solution to this "problem." However, the cure would likely be far worse than the disease. One idea being proposed in the Legislature is a new provision of law that would flatly (and illogically) state that permit-exempt wells do not impair streamflows (in other words, we just don't have to worry about it). This "head-in-the-sand" approach would undermine both the prior appropriations system generally and protection of instream flows in particular, and conflicts with the well-established principle that instream flows are water rights like any others. Undermining instream flow protection would be catastrophic for fish and wildlife, as well as interfering with the state's obligations to its treaty tribes. Rather than search for the quick fix, the better course is to acknowledge limits on our water supply, and to ensure that new water uses do not come at the expense of senior users. By doing so we can sensibly manage Washington's growth without sacrificing its environment and quality of life.