County awaits Hirst fix to end uncertainty

MOSES LAKE — As state legislators returned home from Olympia following their third special session, they left two significant matters unaddressed.

They failed to approve the state’s $4 billion capital budget, and the were unable to pass legislation that would “fix” last year’s Hirst Decision by the Washington State Supreme Court effectively limiting rural development in much of the state.

“While I am disappointed that the House leadership chose to leave families without a solution to their water needs, I am committed to continuing the dialogue to find a permanent solution for water availability,” said Sen. Judy Warnick, R-Moses Lake, in a press release.

However, while Grant County officials want the state legislature to undo the Hirst Decision, they are also clear the effect on Grant County is very limited.

“We decide how it applies to Grant County,” said Damien Hooper, Grant County planning director. “It affects water law in Washington, but the circumstances in Grant County are different. The facts in Hirst don’t apply to Grant County.”

According to Hooper, if someone comes to Grant County to build a single house or a small subdivision drawing water from permit-exempt wells — wells that provide up to 5,000 gallons per day — the law requires the developer, and not the county, to determine if there is enough water.

In Whatcom County vs. Hirst, the state Supreme Court ruled last year that Whatcom County failed to adequately protect water resources and required counties — rather than developers — to determine if there is enough water available for rural development.

However, the Hirst ruling only appears to apply to counties with “instream flow rules” designed to ensure enough water for fish, wildlife, and surface water (rivers and streams) rights holders. Twelve of Washington’s 39 counties — including Grant and Adams — have no such rules.

And so no know seems to know if or how Hirst will apply to a very dry county like Grant, according to Brook Beeler, communications manager with the Department of Ecology in Spokane.

“It’s a common thing we hear from landowners and builders, and that is one of the reasons people are looking for a solution that allows growth and development but protects water resources,” Beeler said.

“It’s Grant County’s responsibility to interpret (the Hirst Decision),” she added.

The Grant County Planning Department is proceeding as if the Hirst Decision has no effect on well drilling in Grant County, even as Hooper said he appreciates the decision affects all of Washington’s water law.

“We talked with (the Department of) Ecology about this, and Ecology did not disagree,” he said.

Still, while Grant County residents appear to be able to continue drilling permit-exempt wells, everyone involved wants a legislative fix that resets Washington water law statewide to the pre-Hirst standard.

“Sen. Warnick’s bill is spot-on,” Hooper said. “We’re waiting to see what the legislature does.”

Because there’s a grim sense that if it isn’t fixed, a court decision constraining water use in soggy Whatcom County will eventually limit water use in the desert that is the Columbia Basin.

“At some point, it will,” said County Commissioner Richard Stevens.