Development picks up with Hirst fix

Residential well
Washington state lawmakers, a representative from the construction industry and a county executive are detailing how their sectors and jurisdictions have responded to the Hirst fix since its implementation. Photo: Pixabay

Three months since Governor Jay Inslee signed Senate Bill 6091, commonly referred to as the Hirst fix, into law, representatives from the Legislature, the building sector and local government are detailing how their constituents and members are reacting, as well as what to expect for developments in the next year.

Senate Bill 6091 allows building permit applicants to pay a fee to build on plots of land that are reliant on well water for domestic use under certain yearly water drawing limits. It also clarifies that local governments can rely on Department of Ecology (DOE) instream flow rules to meet Growth Management Act (GMA) water availability standards.

Sponsored by State Sen. Kevin Van De Wege (D-24), the measure worked to address public concerns stemming from the 2016 Washington Supreme Court decision in Whatcom County v. Eric Hirst. The bill received a 35-14 vote on the Senate floor and a 66-30 vote in the House before being signed into law on January 19.

Shortly after the court’s ruling, Washington residents and local government leadership voiced concern that it halted building developments reliant on potable water, causing some counties, including Whatcom, to issue emergency building moratoriums.

Whatcom County Executive Jack Louws told Lens: “I think that the law has done a pretty good job of putting us back into business and giving us the ability for those in the community who want to capitalize on the opportunities on their property….”

He added that the law puts the state back in “the driver’s seat” as it relates to water issues and gives counties the ability to plan under the GMA.

During its first meeting after the bill became law, the Whatcom County Council repealed the existing building moratorium and approved a 60-day emergency ordinance allowing well approvals under the parameters outlined in SB 6091.

Now, the county is working through the planning commission and council to integrate the current ordinance formally into the Comprehensive Plan as required by state law.

He added that DOE has done a good job clarifying and giving clear direction for people halfway through the permitting process. The majority of people were able to proceed and finalize their projects since the bill’s passage.

“While the homeowner has ability to move forward, the bill also put the burden on the county to further plan for the impacts that the proposed new wells have on the watershed.”

Under the law, the county has an obligation to create a mitigation plan for the consumptive use impact of the wells proposed to be drilled over the next 20 years by February 2019.

Louws added that although there are still unresolved water issues beyond Hirst related to water quality and quantity, the law gave landowners reasonable certainty that they can do what they wish on their properties.

“Virtually immediately the law got development going again in those rural areas that were reliant on household wells,” Jan Himebaugh, Government Affairs Director for the Building Industry Association of Washington (BIAW), told Lens. “People were able to move forward with their dreams and my members were able to build them a home.

“This is everything for our guys who build across the state. If you don’t have access to water, you don’t have a home.”

The Hirst fix also prevented the state from losing out on $6.9 billion in direct and indirect spending each year while homebuilding was put on hold.

“We had members whose business dropped off 50 percent because they weren’t able to drill wells,” said Himebaugh.

State Rep. Jim Walsh (R-19) said the law “lifted the cloud” from the issuance of building permits and the development processes connected to them.

“Lenders are much more at ease about making good loans on construction projects and development projects because of the confidence they can have in permits being good and valid.”

Walsh added that local tax jurisdictions are also relieved because they were worried about a negative tax shift that would occur if rural parcels lose their value. The concern was that the property tax would shift from those properties to others and make them harder to sell.

The law also mandates that DOE create a Watershed Restoration and Enhancement (WRE) committee in Water Resource Inventory Areas (WRIA) where instream rules have not been adopted.

 “The Hirst fix doesn’t fix everything, of course,” said Walsh. “It basically returns southwest Washington to the status quo before the decision was made, but people still have to fight for good water policy.”

It is incumbent on the WRIA work groups, the local rule-making entities for water rules, to stay in front of the process and put forward plans that are good for residential, commercial and agricultural development and property rights, he added.

Walsh said his constituents remain very opposed to metering residential wells. The law allowed two existing pilot programs to remain active which meter residential wells

“I am very concerned about those metered wells programs expanding. I want to see them limited to those two areas.”

State Sen. Judy Warnick (R-13) said: “There hasn’t been a huge reaction from my constituents, but I think they are quietly going about building their homes and getting their permits.

“There are still some attempts to feel out what is available out there. One particular case was people who didn’t want to hook into a community well that was already there, which Hirst didn’t cover.”

Warnick added that she is monitoring the planning developments for WRIAs closely as they progress.

“The beauty of the bill is that we didn’t solve the problems for the local folks, but it was set up, so they could solve the issues pertinent to their districts.

“Give the law and the locals time to work,” she said.



  1. How about desalination plants for piped in ocean water? A bysiness could furnish the water for a price and sell the refined salts.


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