"The practical result of this holding is to stop counties from granting building permits that rely on permit-exempt wells."
— Dissenting opinion,
WA Supreme Court Hirst decision
The Washington State Supreme Court ruled on Oct. 6, 2016 that counties planning under the Growth Management Act (GMA) must make their own determination of available water before issuing a building permit.
The case, Whatcom County v. Western Washington Growth Management Hearings Board (also known as Hirst), overturns a 2015 Court of Appeals decision that held that Whatcom County could rely on the Department of Ecology’s determinations of available water to allow the use of wells (considered permit-exempt under the law) in basins not closed by Ecology.
Essentially, a county planning under GMA cannot issue a building permit that would depend on an exempt well—even if Ecology’s rule allows exempt wells—without showing that the well will not impair certain rivers and streams or a senior water right.
GMA-planning counties are assessing the ruling and how it impacts each of them when issuing residential building permits. In the process, some counties have put in place temporary bans on building permits, effectively stopping the building of new homes in many rural communities, while others offer no guarantees that a home can be built if they issue a building permit.
Other counties have responded by approving the use of costly hydrogeological studies to prove that water withdrawal from a well won't impact instream flows of rivers, streams and other bodies of water.
Due to the expense of these surveys, and with no or limited mitigation options available, home building in all of these areas has an uncertain future. Counties need to be able to rely on Ecology's rules to establish a standard across the state for all residential building permits.
Summary on What the Hirst Decision Means for Builders (pdf). This document provides information on the impacts of the decision on home builders and others across Washington.