The Effect of Hirst on Non-GMA Counties and Issues Other Than Water
November 9, 2016
Category: Guest Author , Court Decisions and AGO Opinions , Water Resources
This is the fourth post of a five-part series discussing the Washington Supreme Court’s decision in Whatcom County v. Hirst.
I’d like to use this final post on the Hirst decision to consider two additional questions. First, the potential impact of the Hirst decision on counties that do not plan under the GMA, and second, whether Hirst has application to issues other than water. In short, I believe the decision may have serious implications for counties not planning under the GMA, but I do not see that Hirst has application beyond water issues.
What Does Hirst Mean for Non-GMA Counties?
The Planning Enabling Act, at RCW 36.70.330, sets forth the required elements of a comprehensive plan for a jurisdiction that is not planning under the GMA. The land use element of these comprehensive plans must provide for “protection of the quality and quantity of groundwater used for public water supplies.” This is virtually identical to the language in one of the GMA provisions at issue in Hirst (i.e., RCW 36.70A.070(1)). A challenger could argue that, like in Hirst, a county is not meeting its obligation to protect quantity and quality of groundwater, pointing to the language in the Planning Enabling Act rather than the GMA. While it may be a legal jump, I don’t think a court would have trouble making it. Further, the provisions at RCW 19.27.097 and RCW 58.17.110 that require an applicant to demonstrate evidence of adequate water supply for development apply throughout the state, not just GMA-planning counties.
Note that the forum for a challenge would be different in a non-GMA county. RCW 36.70.680 requires planning agencies to make recommendations for changes to comprehensive plans and development regulations to comport with the law. RCW 36.70.460 requires planning agencies to render an annual report on the comprehensive plan and accomplishments thereunder. RCW 36.70.410 provides for initiating changes to a comprehensive plan based on changed conditions. The failure of an annual report to indicate needed changes related to Hirst, or the failure of a county to commence making such amendments, would presumably be occasion for legal challenge. If the comprehensive plan or development regulations are challenged, the challenge would have to be brought in superior court.
Does the Hirst decision apply to issues other than water?
I don’t think the Hirst decision will have an effect on a county’s GMA obligations beyond water issues. While RCW 36.70A.020(10) does list the protection of “air” as well as water, that is merely a “goal” of the GMA. The court in Hirst clearly stated that it had “never held that local governments are bound by these goals in addition to the enumerated requirements of the Act.” In contrast, Hirst makes clear that counties are bound by the enumerated requirements of the GMA, which, under RCW 36.70A.070(1) and (5)(c)(iv), include the protection of surface and groundwater. None of the other mandatory GMA requirements raise the questions that water did in terms of the respective roles of the state and local governments in regulating the resource. Hence, at this point it appears safe to say that the implications for local responsibility under this case are limited to water issues.
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.
The only other challenge that could be brought is an appeal of an individual permit decision. As I stated in my second blog post, a challenge targeting a county’s comprehensive plan and development regulations under LUPA would be unsuccessful. A challenge to an individual permit decision under RCW 19.27.097 or RCW 58.17.110, however, could conceivably be brought. Someone opposing the issuance of a building permit or approval of a land division might argue that the applicant has not provided evidence of an adequate water supply, arguing some of the principles addressed in Hirst (although as noted at footnote 6 of the Hirst decision, RCW 19.27.097 is applied differently in non-GMA counties). 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.
For more information on the implications of the Hirst decision, see the four other posts in this five-part series.
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