Tag: Hirst

ESSB 6091 – Part 3: The Potential for Mitigation Flexibility in Water Rights Permitting After Foster v. Yelm

On October 8, 2005, the Washington Supreme Court reversed a water right permit issued by the Department of Ecology (Ecology) to the City of Yelm.1 The decision dramatically impacted the State’s water rights permitting program by denying authority to Ecology to allow any type of mitigation for potential impacts to adopted minimum instream flows (MIFs) other than 100% in-kind, in-time,…

Legislature Passes Hirst and Foster Fix, Authorizes $300 Million for Streamflow Restoration

After last year’s legislative deadlock that failed to adopt either a fix to rural water availability or a capital budget, the Washington State Legislature made quick work of a compromise bill, ESSB 6091,[1] which was the first bill signed into law in the 2018 session. The bill has many features, including: It requires updates to several watershed plans and new…

Tom Pors will be Speaking at the WSBA ELUL Section Mid-Year on May 11

Tom has been invited by the Washington State Bar Association’s Environmental & Land Use Law Section to speak at its mid-year meeting about the newly passed Hirst fix and streamflow enhancement bill, ESSB 6091.  He will be on a panel with Yakama Indian Nation tribal attorneys Shona Voelchers and Kate Marckworth.  The title for this one-hour seminar is “ESSB 6091: Hirst…

The Place for Ethics in the Resolution of Hirst and Other Water Conflicts in Washington State

This year’s legislative efforts to restore groundwater availability after the Washington Supreme Court’s decision in Whatcom County v. Hirst resulted in a partisan deadlock that also side-lined the state’s $4 billion capital budget.  Economic impacts of the deadlock are now estimated to run to $11 billion and cause a $37 billion decrease in the value of undeveloped land,[1] which will…

UNDERSTANDING THE HIRST AND FOSTER DECISIONS – WHY DO THEY NEED TO BE FIXED?

The Supreme Court’s Hirst decision, the subject of legislative reform efforts and an impasse over the capital budget, is a very controversial barrier to water availability in rural areas. The Court’s 2015 decision in Foster v. Yelm is another controversial ruling that eliminated water right flexibility for mitigation banking and water availability for growing urban areas.  Both of the Court’s…

Agenda is Set for July 25, 2017 LSI Water Law in Washington Seminar

I was proud to co-chair the leading annual water law seminar in Washington State the last two years.  This year, I will be moderating a panel of distinguished speakers at LSI’s Water Law in Washington seminar on July 25, 2017 in Seattle. The panel topic is, “Local Water Resource Planning after the Hirst Decision.”  There is a lot to talk about, because the…

Whatcom County v. Hirst Decision Requires Counties to Independently Protect Minimum Instream Flows

The Washington Supreme Court’s decision in Whatcom County v. Hirst,[1] will significantly impact rural water availability by requiring Washington counties to ignore exceptions for permit-exempt wells in many of the state’s instream flow protection rules, causing considerable and unwarranted hardship to rural property owners.  The decision expands the Court’s already extreme protection of regulatory instream flows by requiring counties to…

Whatcom County v. Hirst Decision Expands Instream Flow Protection to Counties under GMA

The Washington Supreme Court’s decision in Whatcom County v. Hirst,[1] will significantly impact rural water availability by requiring Washington counties to ignore exceptions for permit-exempt wells in many of the state’s instream flow protection rules, causing considerable and unwarranted hardship to rural property owners.  The decision expands the Court’s already extreme protection of regulatory instream flows by requiring counties to…

Appeals Court Reverses GMHB Ruling re Whatcom County in Hirst Case: Permit-Exempt Wells Not Governed by Nooksack Instream Flow Rule

Whatcom County has won its appeal in a closely watched case at the intersection of water rights and land use law. Division One of the Washington Court of Appeals held that the Western Washington Growth Management Hearings Board erroneously interpreted the Nooksack Basin Instream Flow Rule, Chapter 173-501 WAC, and reversed the Board’s rulings that Whatcom County was out of…