Jean O. Melious


water, environment, legislature, Washington, well, permit-exempt, prior appropriation, Hirst


In a groundbreaking 2016 decision commonly referred to as the Hirst decision, the Washington State Supreme Court recognized the interrelationship between land use and water use. The Court held that the state’s Growth Management Act required local governments to protect water resources through measures ensuring that new development would not deprive senior water users of their water rights. The decision focused on development relying on permit-exempt wells. Permit-exempt wells reflect a pioneer mentality that encourages dispersed development by allowing rural property owners and developers to appropriate water without obtaining a permit. Permit-exempt wells are subject to the state law of prior appropriation, however, and the Court found that junior permit-exempt wells should not be allowed to deprive senior water users of their water rights. Hirst upheld four purposes of Washington State water law: (1) protecting existing, senior water users; (2) protecting the public interest in instream values; (3) protecting tribal water rights and tribal fisheries; and (4) enhancing the state’s ability to adapt to climate change. In contrast, a recent state legislative “fix” conflicts with all four of these water law goals and undermines the State’s ability to address present and future water shortage problems.