New Ruling Affirms GMA Counties’ Big Role in Water Resource Planning

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

Earlier this month, the Washington Supreme Court decided Whatcom County v. Hirst, a Growth Management Act (GMA) case that will have a profound impact on the way many counties throughout the state address water resources.

In Hirst, the court held that counties have the responsibility under the 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.

One of the many difficulties of the Hirst decision is that it does not really tell a county what it should do to be GMA-compliant, but more what it cannot do. Specifically, the court further held that “[t]he County cannot reasonably rely on [Ecology’s regulation, specifically the Nooksack Rule] to satisfy its responsibility under the GMA to protect water availability.”

In this blog post, I’ll provide a general overview of main issues raised in the Hirst decision. Future posts will discuss the responsibilities and options that counties have under Hirst as well as other implications of the case.

Background

The situation in Whatcom County was that the Department of Ecology had certain rules in place (chiefly the Nooksack Rule, which sets minimum instream flows for part of Whatcom County) and Whatcom County’s regulations mimicked those rules. There was significant evidence in the record showing the denigration of water resources such as continued failure to meet instream flows, nitrate contamination of wells, shellfish die-offs, etc. In other words, there were regulations in place—the county was doing whatever Ecology was doing—yet the quality and quantity of surface and ground water resources were not being protected. 

County Regulations Mimicking those of Ecology are not Necessarily GMA-Compliant

Whatcom County argued that, citing to Kittitas County v. EWGMHB, it only had to mimic Ecology to be GMA compliant. The problem with that argument was that the facts between the two cases did not match. In Kittitas County, the problem was that the county’s lack of regulation was letting violations (of the exempt well statute) receive authorization—violations that Ecology would have prohibited. Hence, the fix was to have the county’s regulation match that of Ecology. In Whatcom County’s case, existing regulations (both those of the county and Ecology, which matched) were failing to protect the quality and quantity of ground and surface water. 

Given that the county, not Ecology, has a GMA-obligation to protect water resources, and that existing regulations were not doing so, the GMA-compliant fix required the county to regulate ahead of any Ecology rulemaking. This is why the Hearings Board found, and the Washington Supreme Court affirmed, that Whatcom County could not show GMA compliance by merely mimicking Ecology’s regulations that were failing to protect ground and surface water. 

The court characterized Whatcom’s reliance upon Ecology rules as “unreasonable” and explained why. The Nooksack Rule was promulgated in 1985 (five years before the GMA) using a primitive understanding of the connectivity between ground and surface water. That understanding has evolved significantly, impliedly calling into question the validity of certain aspects of the rule. Whatcom County itself found, in 1999, that “proliferation of rural, permit-exempt wells [created] ‘difficulties for effective water resource management.’” When a county recognizes a problem, the reliance on an agency rule which that agency now would hold scientifically suspect cannot reasonably be conceived as a valid effort to protect the quality and quantity of ground and surface water. Counties, not Ecology, are governed by the GMA and so cannot pass their GMA obligations onto other entities, or defer to rules or determinations of other entities, which are not under the GMA as a means of satisfying their GMA requirements.

Under the GMA, Counties Must Perform an Impairment Analysis

Another of Whatcom County’s arguments was that it lacked legal authority to engage in the inquiry (an impairment analysis) the Hearings Board was calling for. The county argued that the unique authority to engage in an impairment analysis was vested, via Title 90 RCW, in Ecology and the superior court, not the county, and without such a statutory role, the county had no authority to engage in an impairment analysis.

Similar to the response to my argument about exempt well statute violations in Kittitas County v. EWGMHB, the court in Hirst responded by saying that a county has authority, indeed the duty, under the GMA to make what, for all the world, looks like an impairment analysis. The difference is that a county is doing so as an exercise of its land use permitting authority and for purposes of determining whether or not to issue a permit, not for purposes of making any determinations as to water rights or the impairment thereof. Hence, the court has consistently held that counties, via GMA authority, have authority and a duty to engage in certain inquiries for purposes of making land use decisions, not for purposes of deciding anything about water rights.

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