Upcoming Conference | 2019 Re-Wire Policy Conference, Dec 10, 2019 Register

What’s the solution for residents on exempt wells after the Hirst case?

Exempt well permitting in Washington manages to sound dry, even if it’s about water. But Republican lawmakers are urging their colleagues to pay attention since many consider it one of the heavier-hitting issues this session.

“This then gets down to, from my perspective, what are the people’s rights,” said Sen. Randi Becker, R-Eatonville, in an interview with the Washington State Wire Jan. 16. “What are the constitutional rights of people with property?”


The Washington State Supreme Court made a decision last October that will restrict the permitting of exempt wells. Exempt wells typically are used by rural individuals or families and tend to be limited to pumping 5,000 gallons or less per day. If folks set up their home outside a municipal water system, their best (if not only) option for water is through an exempt well.

In a case that began in 2013, Futurewise, an anti-sprawl group, challenged Whatcom County’s water permitting, according to a report in The Bellingham Herald in October. The court ruled in favor of Futurewise and the plaintiffs, Eric Hirst, Laura Leigh Brakke, Wendy Harris and David Stalheim. The Hirst Decision, as it’s referred to, means that counties are now required to ensure that enough water is available before they can issue permits.

Futurewise praised the decision in a press release sent out October.

“The supreme court’s common sense opinion protects both fish and consumers” said Chris Wierzbicki, Futurewise’s interim executive director in a statement. “Fish and wildlife are protected by planning for growth in a way that protects the instream flows needed to maintain their habitats. Consumers are protected because new lots and new homes must have a legal supply of water the buyers can rely on long-term.”

The Department of Ecology has a page on its website dedicated to the Hirst Decision, and encourages homeowners who want to drill an exempt well to talk to their counties to find solutions. But the solutions available are not easy fixes for homeowners. The department suggests homeowners fund their own hydrogeological analysis (though the department notes this can be expensive), mitigate their well impact on streams (though the department acknowledges mitigation options are limited) or use other sources of water like rainwater collection and cisterns.

“What’s so bad about this, is now the counties have to make their own determination when making decisions about this for permitting,” Becker said, and since the state has 39 counties developers could struggle with a patchwork of varying rules.

“I think that legislatively we’re going to have to fix this,” she said.

The Hirst Decision will hit rural residents and developers, she said.

“Our rural areas are still struggling after the recession,” she said. Rural residents and developers could see an increase in the cost of living while seeing their property devalued on the market.

Satpal Sidhu, a city council member for Whatcom County, wrote an op-ed for The Bellingham Herald in December, questioning the court’s decision and seeking a solution.

“Rural residents are angry because they feel they have been singled out to pay for the environmental preservation. Their resentment comes from not being consulted about something that takes away their rights, their life savings, their lifestyle or even their retirement,” he wrote.


A bill addressing the Hirst Decision co-sponsored by 11 Republicans (Judy Warnick, Moses Lake; Doug Ericksen, Whatcom County; Becker; Maureen Walsh, Walla Walla; Jan Angel, Port Orchard; Lynda Wilson, Vancouver; Mark Schoesler, Ritzville; Jim Honeyford, Sunnyside; Kirk Pearson, Monroe; Sharon Brown, Kennewick and Mike Padden, Spokane Valley) and one Democrat (Sen. Dean Takko, Longview) was introduced Jan. 18.

SB 5239 would revise the law that the Hirst case was decided on, nullifying the decision.  It is set for its first public hearing at the Senate Agriculture, Water, Trade and Economic Development committee Tuesday morning.

A previous version of this report incorrectly stated Sen. Mike Padden was from Spokane. He is from the Spokane Valley.

Erin Fenner: erin@washingtonstatewire.com, @erinfenner