BuyersReal Estate Agents September 8, 2017

The Hirst Decision: What does it mean?

What’s this Hirst thing all about?

Well it comes down to water. To get a building permit, the owner of the property has to show that the home will have a source of clean, potable water. And when no public water system is available, the owner must rely on a private well.
Before October of 2016, the Department of Ecology was the agency responsible for determining if a new well would impact in-stream water flow and senior water rights. For years the Department of Ecology had granted blanket waivers to anyone building a single family residence that was using less than 5,000 gallons of water a day – which is 95% of people. But then the Washington Supreme Court issued the Hirst decision, saying that local government at the county level was now responsible for ensuring a new well wouldn’t negatively impact in-stream flows or senior water rights. There would be no more blanket waivers. Unfortunately, counties didn’t have any established baselines to measure against or mechanisms in place to measure the impact of new wells. Therefore the Hirst decision basically brought the issuance of building permits to a screeching halt.

Over time, counties throughout the state have come up with different interpretations of the Hirst decision in watersheds that are not subject to federal in-stream flow rules. In western and southern Spokane County (Medical Lake, Cheney and Spangle-area), those areas are not subject to federal in-stream flow rules, so the county issued an interim ordinance allowing one well per every five acres as long as it is no closer than 500 feet from an existing well. The Little Spokane River watershed (Chattaroy, Deer Park, Elk-area) IS subject to federal in-stream flow rules… so the interim ordinance does not apply there and there are still no established benchmarks for hydrologists to measure against. That means building permits in the Little Spokane River watershed will not be issued…period. Unfortunately, that covers virtually all of Spokane County north of downtown.

Even if there’s already a well on the property or if you’ve already drilled one, you won’t be granted a building permit to use the water for a residence. So you can drill a well now, you just won’t be able to do much beyond that. However, you may be able to use rainwater collection, trucked water, or cisterns as other potential sources of water.


Who does this impact?

Really, everyone. First, it obviously affects anyone who wants to move out to the country and build a home. But because most rural land can’t be developed, it’s causing a collapse in value of that rural land. Therefore a burden of property taxes will likely get shifted to homeowners who already have water.


How can the Hirst Decision be fixed?


Well state lawmakers can fix it with bills…and they are working on it. Senate Bill 5239 puts the Department of Ecology back as the water regulatory authority. It’s gotten through the Senate four times…but stops once it gets to the House. The 2017 session ended in late July, so a fix likely won’t happen until at least 2018.

Whew! So there you have it: a summary of the Hirst Decision and what it means for you! If you have any further questions about this decision or how it impacts you, I recommend reaching out to your county building and planning departments or a real estate attorney. If you’d like to read more information about the decision, head over to