The Hirst Fix is In!
Senate Bill 6091 was signed by Gov. Inslee on Friday, January 19, 2018. It attempts to cure some of the issues related to landowners in Washington State not being able to procure building permits.
As we posted last year (see https://macomberlaw.com/2017/05/18/bought-can-build/), the Washington State Supreme Court’s Hirst Decision mandated that cities and counties were responsible from determining whether water was “legally available” before issuing a building permit. In turn, cities and counties mandated owners who wanted to develop their land to hire professionals such as engineers and surveyors to analyze the “legal availability” of water on the land — before that local entity could issue a building permit.
Senate Bill 6091 is a partial fix, but it likely means that in most rural areas and owner will have to drill a well first and show it is productive before a building permit can be issued.
Washington is divided into Water Resource Inventory Areas (WRIA), and many of the new requirements in SB 6091 depend on which WRIA one’s land is located. See https://fortress.wa.gov/dfw/score/score/maps/map_wria.jsp.
A key provision of the Hirst Fix is in section 101 of SB 6091:
“(1)(a) Each applicant for a building permit of a building necessitating potable water shall provide evidence of an adequate water supply for the intended use of the building. Evidence may be in the form of a water right permit from the department of ecology, a letter from an approved water purveyor stating the ability to provide water, or another form sufficient to verify the existence of an adequate water supply. An application for a water right shall not be sufficient proof of an adequate water supply.”
Unfortunately, unless you can hook up to existing water purveyor and get a letter, you may have to drill a well to see if you can get water, even though a water right permit from the Department of Ecology may not be required for beneficial uses not exceeding 5000 gallons per day. RCW 90.44.050.
Luckily, RCW 90.44.050 remains the law, subject to certain reporting requirements: “[n]o withdrawal of public groundwaters of the state shall be begun, nor shall any well or other works for such withdrawal be constructed, unless an application to appropriate such waters has been made to the department and a permit has been granted by it as herein provided: EXCEPT, HOWEVER, That any withdrawal of public groundwaters for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, . . . is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions of this chapter . . ..” See
Therefore, the 5000 gallon water rule still applies. To get a building permit now, landowners in Washington need to provide evidence of an adequate water supply for the intended use of the building.
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