Approaching Your County’s Post Hirst Water Resource Responsibilities

This is the second post of a five-part series discussing the Washington Supreme Court’s decision in Whatcom County v. Hirst.

As I laid out in part one of this series, the Washington Supreme Court made clear in its recent Hirst decision that counties have the responsibility under the Growth Management Act (GMA) to make determinations of water availability for development permit approval and cannot defer to Ecology or rely upon the decision of others when making these determinations.

Hirst brings to mind three questions: what will a county get in trouble for not doing; what can a county do; and what should a county do?

What Will a County Get in Trouble for Not Doing?

I think this boils down to a question of GMA compliance. I have real trouble seeing how a county going through a periodic GMA update could be found GMA-compliant if it made no changes to its comprehensive plan or development regulations in response to Hirst, such as clarifying how the county will address water availability when reviewing building permit and subdivision applications. The Washington Supreme Court clearly held in Hirst that this was a duty of counties under the GMA.

In contrast, for counties not currently going through a periodic GMA update, there likely is some time to consider and develop an approach. Comprehensive plans and development regulations are deemed GMA-compliant upon adoption and remain so until the Growth Management Hearings Board says otherwise. Under RCW 36.70A.290(2), challenges to GMA compliance can only be brought within 60 days of an amendment, or, pursuant to WAC 242-03-220(5), at any time after the failure to act by a deadline imposed by the GMA. The outcome in Hirst was specific to Whatcom County and does not trigger an immediate opportunity to challenge another county’s comprehensive plan or development regulations that are already adopted and deemed GMA-compliant.

Additionally, a challenge to a specific land use decision under the Land Use Petition Act (LUPA) would not be successful if it claimed a GMA violation based on a county’s failure to bring its regulation in line with the Hirst decision. In a LUPA case, a Superior Court does not have jurisdiction to decide questions of GMA compliance (See Woods v. Kittitas County). Even if a particular land use decision were appealed under LUPA, Hirst does not provide a valid basis for overturning a permit decision that otherwise complied with a county’s code. Instead, the existing development regulations—even if in conflict with the holding in Hirst—are compliant until such time as the Growth Management Hearings Board determines they are not. LUPA has a 21-day appeal period which protects municipalities from later-discovered problems or errors. If no timely appeal is brought, the land use decision is considered lawful, and no damage can be caused by a lawful land use action.

What Can a County Do?

I think this is a question of legal possibility. One option would be a declaration of a moratorium under RCW 36.70A.390, stating something to the effect of “Hirst says counties need to decide X, we haven’t done so, so we’re stopping development based upon permit-exempt wells until we can decide X.” While a county can certainly legally do this, it would probably be politically nuclear. For example, when Ecology imposed the Upper Kittitas Groundwater Rule (which limits groundwater withdrawals) on Kittitas County, the wailing and gnashing of teeth was tremendous. Had that been imposed by the commissioners upon their own constituents, it would have caused a political bloodbath. So, while counties can declare moratoria, it’s probably not a good idea to do so. In any event, I don’t think that the failure to declare a moratorium would be an instance of GMA non-compliance (particularly if the county has commenced a study of its water issues, as discussed below).

So, What Should a County Do?

I think the best practice now is for every GMA county to commence a water study, regardless of whether or not the county currently has indicia of water quality or quantity issues. Every GMA county, as part of the periodic update, will need to say whether they do or do not have water availability problems. If such problems exist, the county must then set forth the county code fixes for those county-specific problems. If a county has no indicia of problems, that study may be very simple—and inexpensive—and a declaration that water is available and development based upon permit-exempt wells can proceed could be GMA-compliant. For those counties where groundwater availability is an issue, there should be a statement as such along with amendments to that county’s comprehensive plan provisions and development regulation that specifically address the unique local circumstances.

To be GMA-compliant, a county needs to determine if it has a problem before it can craft a remedy. So, I think that commencing a study may be the most appropriate first step, rather than a moratorium, because a problem cannot be solved until it is understood. 

For more information on the implications of the Hirst decision, see the four other posts in this five-part series.