Hirst Decision: an attack on rural landowners’ right to potable water


By Ed Kilduff




The October 2016 Washington State Supreme Court decision Hirst vs. W. Washington Growth Management Hearings Board (“Hirst”) opens a new offensive against individual property rights and common sense; and it continues the trend of legislative rule-making by our Supreme Court.

Our Washington Supreme Court justices have habitually strayed from their judicial role into the realm of policy making from the bench. The ruling is disastrous for property rights, and it is a crowning achievement of decades of subterfuge by Futurewise (the prime plaintiff in the Hirst case), who together with like-minded groups, champion never-ending aggression and control of citizens via centralized planning.

The effect of the Hirst case is summed up best by Justice Stevens in his dissent from the majority: “The majority’s decision hinges on an interpretation of RCW 19.27.097 that is unsupported by the plain language of the statute, precedent, or common sense.”

Hirst is deals primarily with water, though it’s affects are broad since it affects the ability of landowners to obtain a building permit. Few landowners want to develop a property without adequate access to potable water.

Post Hirst decision, homeowners may have to prove that their use of wells does not affect nearby streams or other senior water rights – even theoretical impacts to streams are enough to prohibit homeowners from obtaining a building permit. Homeowners are put in the position of potentially spending many tens of thousands of dollars on hydrogeologic studies, with no guarantee that such studies will achieve their goals.

The practical effect is to further inhibit growth in rural areas that have already been hit hard by restrictions stemming from the Growth Management Act (GMA). Hirst requires that water now be incorporated into GMA planning, so effectively, GMA jurisdiction has been extended by Hirst to cover both land and water supply now.

This method of dealing with water rights is contrary to the age-old process of allocating water rights via the adjudication process and the courts. Now, planners can rule on water rights and create conflicts where none existed in the past – and where none exist in reality either.

In counties with a mindset hostile to growth, such as Whatcom County, the effect of Hirst has been a devastating moratorium on rural building. In many cases, families purchased rural properties (e.g., for retirement) long before Hirst and invested substantial amounts of money in site infrastructure (septic, power, and well installation), but have not yet begun the building process or received a building permit.

In those cases, because the on-site well has not yet been used for beneficial use, there is no associated water right for the well, and therefore no “adequate supply of water” to develop the land. The land is now undevelopable and worthless, and the owner financially ruined.

There is no telling where this will end up, but the consequences and shifts in power are tectonic. Tax burdens will inevitably shift from worthless rural properties to urban properties, for example. Holders of existing water rights (i.e., public utility districts, tribes, cities) now have valuable assets that may be sold to those seeking to develop property. Stay tuned.