February 1, 2017
By: Tricia D. Usab
On October 6, 2016, the Washington Supreme Court handed down a decision in Whatcom County v. Hirst, 186 Wash. 2d 648 (2016), that directly impacts the development of land with permit-exempt wells in counties such as Spokane, that are subject to the Growth Management Act. The Growth Management Act is legislation that reinforces conservation goals, discourages sprawling low-density development patterns, and encourages future growth in urban areas. Permit-exempt wells allow a withdrawal of groundwater for domestic use in an amount not exceeding five thousand gallons per day without any water permit requirement, provided that the groundwater withdrawals do not infringe upon any senior water rights. The Court held that the Growth Management Act places an independent duty on counties within Washington to ensure that groundwater appropriations will not infringe upon any senior water rights, including minimum stream flows prior to allowing land development. The result is that counties can no longer rely upon the contention that water is presumptively available for permit-exempt wells provided that the county’s comprehensive plan is consistent with certain rules issued by the Department of Ecology. Prior to this ruling, counties regularly allowed owners of land with permit-exempt wells to obtain building permits without the applicant providing any evidence that water is legally available, or actually available on the land. Counties only confirmed that the well did not fall within one of the boundary areas identified by the Department of Ecology, as an area where water for development does not exist.
The Court stated in its analysis that the trend in the law is to retain sufficient water in streams and lakes in order to sustain wildlife, recreational, and navigational opportunities. The Court noted that the Growth Management Act shifted some of the obligation to protect local environments to local governments, instead of solely relying upon the Department of Ecology. The Court’s decision relied upon Washington’s precedent of protecting minimum instream flow rights, which are the minimum streams necessary for fish and other wildlife. The Court reasoned that since the adoption of the Department of Ecology rules in 1985, the understanding and methods of determining hydraulic continuity and the effect of groundwater withdrawals on surface water have changed. The Court noted that when the minimum instream flow rules were adopted, the Department of Ecology did not believe that withdrawals from deep contained aquifers impacted stream flows, but now it is well recognized that groundwater withdrawals can have a significant impact on surface water flows. Additionally, the rules issued by the Department of Ecology that Whatcom County and other counties have followed allow a permit-exempt well to appropriate water from an otherwise closed basin, unless the basin is closed to all future appropriations. Accordingly, in addition to holding that counties must consider the effect on senior water rights before approving building or subdivision permits, the Court held that if there is a conflict between the Growth Management Act and the Department of Ecology rules, the Growth Management Act controls.
Currently there are no systems in place for counties to analyze a well’s effect on senior water rights, since prior to this ruling, counties relied upon the Department of Ecology’s rules specific to each water basin. Justice Stephens, in her dissenting opinion, stated the practical result of this holding is to stop counties from granting building permits that rely on permit-exempt wells. Justice Stephens stated that the majority’s holding misinterpreted the phrase adequate water supply in the building code, to mean legal availability, not just actual presence of water. Justice Stephens reasoned that the Department of Ecology was tasked with developing and implementing the comprehensive state water resource program and water resource inventory areas, which Whatcom County and other counties across the state have relied upon prior to this decision. Justice Stephens opined that the building codes implemented by local governments should be aligned with the water resource areas, allowing counties to integrate the Department of Ecology’s water determinations into their comprehensive plans and rely upon them when reviewing building permit applications. According to Justice Stephens, the majority’s opinion assigns applicants who are otherwise exempt from obtaining a water permit, to obtain hydrogeological studies to determine complex effects on surface water from the use of a given well, that are difficult, if not impossible, to measure.
It is hard to know what a permit-exempt landowner will need to produce to obtain a building permit from a county governed by the Growth Management Act moving forward, but this case makes one point very clear, water is being classified as a limited commodity, and there is a trend toward increasing regulation that all users will be forced to navigate. In the wake of this decision, Spokane County has adopted an emergency county ordinance prohibiting any well to be drilled within 500 feet of an existing well. According to the Spokesman Review, Spokane County officials believe this ordinance complies with the controversial decision, but prevents a moratorium on building and reduces the burden of proof placed on an applicant with a permit exempt well. I will continue to monitor this issue for further developments and for more information on Spokane’s emergency ordinance, please follow the link below: