In October, the Washington Supreme Court entered a decision in Whatcom County v. Hirst, (Hirst) a Growth Management Act (GMA) case. In the opinion, the court states that counties have a duty under the GMA to determine water availability prior to permit approval for homes or subdivisions located in rural areas that currently lack access to municipal water, a non-governmental water system, a Public Utility District or Water District. In the past, rural property owners drilled exempt wells to provide a stable source of potable water for their homes or businesses.
So, what’s the problem, you may ask? Well, the court’s decision doesn’t actually spell out the steps a GMA county must take in order to be compliant with the GMA. Neil Caulkins, the chief deputy prosecutor for Kittatas County, tells readers of his four-part series posted on the Municipal Research Services Center (MRSC) Insight blog that Whatcom County “cannot defer to the Washington State Department of Ecology’s (DOE) Nooksack Rule. Or, rely upon the decision of others when making these determinations.” He goes on to say that the county has “the duty, under the GMA to make what, for all the world, looks like an impairment analysis.”
The counties have inherited this responsibility, in their capacity/role as a land use permitting authority. In other words, a county must determine if water is legally available prior to approving a permit, but counties do not have the authority to make a water right determination.
So, what exactly is a Determination of Availability? First, the county must review the volumes of groundwater data that it has accumulated over the last 30 years to determine which basins in the county have water available for appropriation. Most of us know that Whatcom County has a history of “over appropriation” in a number of basins, so the county must establish how they will document this evidence in the Comprehensive Plan.
I’m not sure how many readers have had an opportunity to review Whatcom County draft ordinance 2016-309A, since the full text wasn’t included in the November 22nd council agenda packet. (editor note: we have a pdf of 2016-309A ) But the draft ordinance includes language that places the burden of demonstrating water availability directly on the permit applicant. This approach, dubbed by Neil Caulkins as the “we don’t know, so we’ll let each applicant convince us” strategy, places the “GMA responsibility upon the applicant who is not regulated by the GMA and upon whom the GMA does not place that burden.” The ordinance also includes language that will allow the planning director to request a third, unbiased assessment if they have additional questions about the impact an exempt well will have on groundwater. The lucky permit applicant will be paying for that assessment as well.
Caulkins warns counties, that due to “the cumulative effect of more than a thousand exempt wells…. A piecemeal, permit-by-permit approach would not adequately address the cumulative impacts of many small groundwater withdrawals.” He recommends that water availability be decided on a large, zoning scale. Not on individual applications. In fact, he states that “there should not be the need to conduct something akin to an impairment analysis on every building permit. That would certainly lead to unequal and unpredictable results, and likely county liability.” So, why is Whatcom County implementing a piecemeal, permit-by-permit approach? Beats me.
At the October 25th regular council meeting, Councilmember Barbara Brenner and a number of concerned citizens stated (and I agreed) that there is no rush to adopt a moratorium on building permits. The rest of the council, along with staff and the county executive, stated that it was imperative for the council to adopt the moratorium, to protect the county from additional legal liability. So I found Neil Caulkins comments regarding legal liability very interesting:
“I would like to repeat that using a county’s current regulations and process prior to a periodic update is legally defensible and should result in no liability. Again, local regulations are deemed GMA-compliant upon adoption and remain so until the periodic update. At that point, the Hirst decision should guide the update process with regard to water resource planning. Notably in Hirst, both the Washington Supreme Court and the Hearings Board affirmatively declined to find invalidity. Hence, Whatcom County may, for the moment, continue to use the regulations that were challenged in Hirst, and because the regulations are valid and usable, their use cannot give rise to liability.
So why would a county adopt language requiring individual availability assessments, if a piecemeal approach would lead to unequal and unpredictable results and potential legal liability? In his second and fourth blog posts, Caulkins tells us that a challenge under the Land Use Petition Act (LUPA) would be unsuccessful, since a Superior Court does not have jurisdiction to decide GMA compliance; see Woods v. Kittatas. In fact, Caulkins asserts that the only challenge that could be filed is an appeal of an individual permit decision under RCW 19.27.097 or RCW 58.17.110. In other words, someone (for example, an environmental organization) opposing the issuance of a building permit or development could argue that an individual permit applicant, after spending thousands of dollars, has not provided convincing evidence to demonstrate that there is absence of impairment or an adequate supply of water for the land use permit.
In closing, Caulkins says, “Although Hirst is a GMA case about a county’s comprehensive plan and development regulations, principles may be extended to the individual permit stage. If an individual permit were challenged for not demonstrating adequate water, presumably the remedy would be a remand for a further showing of adequate water.”
I’d like to thank Neil Caulkins for publishing his four-part series discussing the Washington Supreme Court decision in Whatcom County v Hirst. Neil has over 15 years experience as a municipal attorney and his practice area focuses on land use. He also drafted all pleadings and provided all argument on behalf of Kittitas County in Kittitas County v. EWGMHB, the legal predecessor to Whatcom County vs. Hirst.