What is a “Determination of Water Availability” Under Hirst?

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

In Hirst, the Washington Supreme Court made clear 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. But what exactly is a “determination of availability” and how is it different than a “determination of adequacy” under chapter 19.27 RCW?

I think it is important to make a distinction between these terms (although there is unclear language present in the Hirst case) as I believe the nature of these two determinations is different, as is the respective role for counties.

What is a “Determination of Availability”?

A “determination of availability” is a determination as to whether or not water is available for development. In Hirst, the Washington Supreme Court makes clear that it is the responsibility of counties to make the determination of availability, and to demonstrate how they will do this in their comprehensive plans and development regulations. This derives from the GMA provisions at RCW 36.70A.020(10) (“[p]rotect . . . the availability of water”) and RCW 36.70A.070(5)(c)(iv) (“[p]rotecting . . . surface and groundwater resources”). For purposes of rural development, the key consideration in Hirst (and likely for all counties) is the availability of groundwater for permit exempt wells. I think there are three key things to consider regarding the determination of groundwater availability.

First, the determination will be based upon the unique circumstances of a county. So, presumably a study will be needed that could show the presence or absence of unappropriated groundwater. This study should also identify water quality problems (nitrate contamination of wells, for example) that may require regulation to address, possibly affecting the determination of availability. Depending on the circumstances, this may be a single countywide determination that groundwater is or is not available, or it may be basin, drainage, or aquifer-specific. Or, if (like in Whatcom County) there is already ample evidence of over-appropriation of water within certain basins, a county should incorporate that evidence in making its determination of water availability.

Second, the county should not place the burden of showing water availability on an individual applicant. An approach of “we don’t know, so we’ll let each applicant convince us” would likely be successfully challenged as either a failure of the county itself to make the GMA-required determination or as foisting the GMA responsibility upon the applicant who is not regulated by the GMA and upon whom the GMA does not place that burden. Further, one of the issues in Whatcom County was that the cumulative effect of more than a thousand exempt wells ultimately impaired flows. A piecemeal, permit-by-permit approach would not adequately address the cumulative impacts of many small groundwater withdrawals.

Third, a county’s determination of water availability cannot be based on the determinations made by others, without some verification. This means that counties cannot rely upon, or defer to the determinations of, junior, independent water or health districts. Counties, in dispatching the GMA duty to make sure that water is legally available, cannot solely rely upon the assertions from water purveyors, but will need to look to make sure the purveyor has adequate rights. This is burdensome, but not a new requirement because it has existed at least since J.Z. Knight v. City of Yelm (there, in the context of RCW 58.17.110).

What is a “Determination of Water Adequacy”?

Water adequacy is, as seen at RCW 19.27.097, something an applicant must demonstrate to obtain a building permit. Once the county determines whether groundwater is available, an applicant will understand what options there are (if any) for providing evidence of an adequate water supply for development. These options could include:

1. hooking up to a municipal system;
2. use of a water right;
3. purchasing mitigation through a water bank;
4. use of a cistern system; or
5. use of a permit-exempt well. 

If groundwater is not available, then an applicant would be limited to probably just the first four options. The applicant’s role is to show the county which option they are using. The county’s review is limited to determining if the proposed water delivery method provides enough water for the proposed use. Note that a county’s development code should reflect the options available to the applicant in addition to drilling a well, such as using water purchased through a mitigation bank or through use of a cistern system or rain catchment. If the code does not provide for these options, then they might not be available for the applicant to rely upon.

Final Thoughts

In summary, water availability should be decided on a large, zoning-like scale and not on an individual, application-by-application basis. This is a determination appropriately made as part of, and embodied in, the comprehensive plan and development regulations. While counties will need to have staff with water expertise, 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.

And to reiterate what I said in an earlier post, counties not currently going through a periodic GMA update have some time to consider and develop an approach to address these large legislative decisions. For counties currently going through a periodic update, I think it would be important to commence a study in order to identify any problems so that the county can craft an appropriate remedy under Hirst. For more information on these points, see part two of this series.

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