Important Read!!! if you are at all involved in Land Acquisition or Development in Washington State. This makes clear according to this Hydrologist that the Science, the data and knowledge of Groundwater in the State is viewed incorrectly.

1. HIRST DECISION IMPACTS
TO EXEMPT WATER WELLS
Presented by, Steven Neugebauer, LHG, LEG, PG, RG
DECEMBER 2016 KING COUNTY CAPR MEETING PRESENTATION

2. Presentation Overview
 This presentation discusses the impacts the “Hirst Decision” can have on
private property owner’s rights to have exempt water wells in municipalities
that are “planning” under the Growth Management Act (GMA) and where
the Department of Water Resources (DWR) has implemented “instream flow
rules” (WAC).
 “Hirst Decision”, AKA – WHATCOM COUNTY, a municipal corporation,
Respondent; ERIC HIRST, LAURA LEIGH BRAKKE; WENDY HARRIS; DAVID
STALHEIM; and FUTUREWISE, Petitioners; WESTERN WASHINGTON GROWTH
MANAGEMENT HEARINGS BOARD, Defendant. October 6, 2016
 Each County affected by this decision must update their Comprehensive
Plan to address the impacts that exempt wells can have on surface water
base flow and to determine that the exempt well does not impact senior
water rights holders (water availability).
 In the interim these counties are creating policies to address the Hirst
requirements, with only some of the counties having created policies as of
this date.

3. What does Hirst require?
 This presentation does not address the “legal aspects of Hirst, it discusses what
has been interpreted by the Counties and Law firms as being required to meet
the requirements of Hirst.
 Hirst is based exclusively on the Growth Management Act, RCW 36.70A,
although the Washington State Supreme Court included at least 10 other Revised
Code of Washington (RCW) and Washington Administrative Code (WAC) codes,
including the “instream flow rule”, Chapter 43.27A RCW (Water Resources), and
Chapter 90.54 RCW (the Water Resources Act of 1971).
 It has been interpreted that Hirst has two basic requirements for “exempt water
wells” that must be SITE SPECIFIC.
 This includes the “legality” of the access drinking water resources (availability –
impacts to senior water rights holders) and the affects the well will have on
surface water base flow (instream flow)
 Hirst uses the term hydrologic continuity (connectivity) between the drinking
water aquifer and surface water base flow and requires a determination of
impacts to senior water rights holders.

4. How is this different from current law?
 State law assigns the responsibility for water resources,
including ground water to the Department of Water
Resources (a Department transferred to Ecology when
Ecology was created in 1972).
 The DWR creates the in stream flow rules for Water
Resource Inventory Areas (WRIAs), which are WACs that
typically place restrictions on surface and ground water
withdrawals, however, exempt wells are often unaffected by
these restrictions.
 The DWR issues water rights to those who do not have
exempt wells and can place restrictions on exempt wells if it
is determined that senior water rights holders can be
affected by additional ground water withdrawals.

5. How is this different from current law?
 Hirst states that Ecology has NO Authority under the
Growth Management Act, the only entities that do have
authority are the municipalities.
 Hirst requires that the municipalities, not the DWR,
determine site specific impacts from proposed exempt
wells. This includes potential impacts to surface water
base flows and impacts to senior water rights holders
(water availability).
 This boils down to determining ground water
availability and the hydrologic connectivity of the
drinking water aquifer and surface water base flow.

6. How will this be done?
 Hirst does not explain how the requirements of the
court will be met by the County (although this
applies to Whatcom County, all counties are
expected to comply) or what conflicts occur with
other state codes such as the Water Resources
codes.
 What Hirst does indicate is that each determination
regarding an exempt well must be site specific and
this implies that hydrogeologic studies will be
required.

7. Why is this a potential problem?
 Hydrogeologists must adhere to the scientific method,
Best Available Science (required by the GMA), the
standards established by the Geologist Licensing Board,
and the standard and customary practice of
hydrogeology.
 The DWR has NO standards, the water rights examiners
are NOT licensed, are not hydrogeologists or geologists
and the DWR never conducted the necessary scientific
studies to identify and characterize the ground water
resources in the State.

8. Why is this a potential problem?
 Because the DWR does not use science, especially the
hydrogeologic sciences it does not have the required
data for senior water rights holders, including which
aquifers these wells produce from.
 The DWR has zero scientific information on the aquifer
characteristics and has no spatial data on the locations
of the senior water rights holders wells.
 The DWR assumes that there is only one aquifer present
beneath the ground surface, when in reality there can
be dozens of aquifers located in just one section (one
square mile).

9. Data
 The DWR has no scientific data for any of the
ground water resources in the state or for any of
the water wells that are operated by senior water
rights holders.
 Licensed hydrogeologists must have good scientific
data to allow them to make hydrogeologic
interpretations and to determine if senior water
rights holders could be impacted by a site specific
exempt water well.

10. How does the DWR make
determinations?
 No one knows, because these determinations are
not based on science or accurate scientific data.
 It is apparent that the DWR makes its
determinations based on assumptions that are not
based in science.
 The DWR does not apparently know the difference
between unsaturated zone hydrology and ground
water aquifer (drinking water aquifer) hydrology.
 The DWR does not realize that most surface water
base flow is actually unsaturated zone flow.

11. What is the fallout?
Hypothetical view of ground water
with layer cake geology.
Real world ground water with
faulted and folded aquifers from
seismic reflection survey.

12. Counties Creating Policies
 Each county and municipality will need to create
temporary policies to address Hirst until they can
change their comprehensive plans.
 Each county should commence conducting ground
water availability studies, including determining
who the senior water rights holders are, where there
wells are located, how much water they are
producing, and what aquifer they are producing
from (the county must also identify all of the
drinking water aquifers).

13. County Studies
 The County will need to determine if there is hydraulic
continuity between the drinking water aquifers and
surface water base flow.
 The County will need to determine if a new exempt well
in a specific aquifer will impact any other senior water
rights holders in that aquifer.
 Will the counties do this on their dime? Not based on
most of the county policies, although King County will
conduct studies, these do not include ground water
availability studies, which is a Hirst requirement.

14. How many Counties have policies?
 This is unclear. SNR is aware of about 5 counties with
policies for Hirst. SNR is unaware of any municipalities
having any policies. Only one county has effectively
created a moratorium on water wells for 18 months
(King County) however, until policies are in place, no
water wells can be installed in any GMA county or
municipality.
 Of the counties with policies, the majority require the
property owner to have studies conducted by a licensed
hydrogeologist to certify that the exempt well conforms
to the Hirst requirements.

15. Moratorium on Exempt Wells
 Technically all GMA counties and municipalities that
have not developed a policy to allow exempt wells
if hydrogeologic studies are conducted effectively
have moratoriums in place for any exempt water
well installations.
 One county has assigned the duty to meet the Hirst
requirements to its Hearing Examiner.
 King County is the only county so far to effectively
impose a moratorium on all exempt wells for 18
months.

16. Scientific Challenges of Hirst

17. Unsaturated Zone Flow
In reality, the base flow for all surface
water features is unsaturated zone flow,
it is not the drinking water aquifers,
especially the confined drinking water
aquifers.

18. Saturation v Unsaturated
 Drinking water aquifers are “saturated” which means
that the aquifer sediments or soils cannot hold any more
water and a hydraulic system has formed.
 Saturated soil conditions only exist when all of the pore
space is completely filled with water at a pressure
equal to or greater than atmospheric; which is a
hydraulic system that cannot be compressed.
 The unsaturated soil conditions are always at a pressure
less than atmospheric (typically < 1/3 of an
atmosphere) and the pore space is never filled more
than 50%.

19. Unsaturated Zone v Saturated Zone
 By far, the most common type of ground water is water in
the unsaturated zone pore space water at a pressure less
than atmospheric. In all cases the pore space is never filled
more than 50% due to the air pressure in the pore space
limiting the amount of water than can occupy the pore
space, until the pressure of the water reaches atmospheric
pressure or higher, which can only occur if the hydraulic
head of the water is equal to or greater than atmospheric.
 The hydraulic head can only reach a pressure equal to or
greater than atmospheric if the height of the water is equal
or greater than atmospheric and one atmosphere of water
is equivalent to 10 meters of water (about 33 feet).

20. Unsaturated Zone Ground Water

21. Ground Water Aquifer
 All ground water aquifers are considered to be
drinking water supplies.
 These are saturated 100% at a pressure equal to
or greater than atmospheric.
 Two primary drinking water aquifer types:
 Unconfined – piezometeric surface AKA water table
 Confined – potentiometric surface – no water table
 Ground water aquifers are regulated, the
unsaturated zone ground water is not.

22. Ground Water


23. The most common subsurface hydrology

24. Bypass Flow

25. Infiltration a type of unsaturated zone
flow

26. Definitions
 From 33 CFR 328.3 (b)
 From the Corps of Engineers Wetlands Delineation Manual, 1987, Page A-11
 Saturated soil conditions. A condition in which all easily drained voids (pores) between soil particles in the
root zone are temporarily or permanently filled with water to the soil surface at pressures greater
than atmospheric.
 From the Corps of Engineers Wetlands Delineation Manual, 1987, Page A-5
 Ground water. That portion of the water below the ground surface that is under greater pressure than
atmospheric pressure.
 From the Corps of Engineers Wetlands Delineation Manual, 1987, Page A-14
 Water table. The upper surface of ground water or that level below which the soil is saturated with water.
It is at least 6 in. thick and persists in the soil for more than a few weeks.
 From Washington State Code (WAC 173-200-020 – Definitions and WAC 173-218-030 – Definitions)
 "Groundwater" means water in a saturated zone or stratum beneath the surface of land or below a
surface water body.”
 From 40 CFR 144.3
 Ground water means water below the land surface in a zone of saturation.

27. Regulatory Definition v Science
 As can be seen from the previous slide, ground water is
defined in code and by the Corps of Engineers as being
saturated conditions below the ground surface, this is
incorrect scientifically.
 All subsurface hydrology is ground water hydrology,
however, there are two types based on pressure and pore
space filling. Unsaturated zone flow (the most common) is
always less than atmospheric pressure and the pore space is
rarely ever filled with more than 50% water.
 A ground water aquifer is always at or greater than
atmospheric pressure and all pore space is 100% filled with
water.

28. Ground water aquifers
In reality there is no single ground water aquifer and the unconfined aquifer may be
too deep to provide base flow for streams and rivers. In many areas of Washington,
ground water is produced from fractured bedrock aquifers which are typically too
deep to provide base flow.
Confined
aquifers
will not
provide
stream
base flow

29. What Ground Water Aquifers Look
Like

30. King County Hirst Policy

31. Pierce County Hirst Policy

32. Questions?
 If you have any questions, please ask them now.