Water Rights and Rural Development in Washington: the Effect of the Recent Hirst Decision on Counties

Posted by on May 4, 2017

By Oliva Cares*

The recent Washington Supreme Court decision, Whatcom County v. W. Washington Growth Mgmt. Hr’gs Bd.[1](Hirst), appears to carry with it hefty implications for the future of water rights disputes in Washington State and for the obligations counties have under the Growth Management Act. This blog will provide a background on the decision, its reasoning, and explore some of its implications.

History of Water Rights in Washington

Scarce water resources in Washington are governed principally by state regulation. The applicable standard in Washington state, as in most of the American West, is  based on the prior appropriation doctrine of “first in time, first in right,” meaning that the senior water right is to be satisfied in full before later-coming rights are met.[2]Tribal water rights, for example, were given the priority date of “time immemorial” over later-arriving rights, though they were quantified only if a litigation arose.[3] If quantified, the designated right would be restricted to the entire tribe, leaving individuals with a proportional share of the collective right.[4]

A pattern of development and relocation of Midwesterners and Plain State residents to the West and Northwest  regions began with the dust bowl of the 1930s and endures today, as Seattle has consistently ranked among the fastest-growing cities in the nation.[5] With increasing populations came increasing claims to water rights in states like Washington, Oregon, and California. In Washington, as in the other states, the problems presented by water regulation have been diverse. Withdrawal from wells has depleted surface water availability and decreased in stream flow levels, jeopardizing species that depend on sufficient aquatic ecosystems to reproduce.[6] At the same time, pollution and runoff from agricultural and manufacturing operations have compromised the health of Washington’s rivers and streams.[7] Finally, drought in the Sierras has severely decreased the annual snowpack contribution to surface flow, compounding the human impact. Each of the above factors has contributed to what attorney Jean Melious, litigator on the side of the Growth Management Board in the Whatcom County v. Hirst Decision, deemed the “simple, undisputed fact that there is not enough water to go around” in many parts of  Washington. [8]These problems strike directly against the prior-existing rights of tribes and earlier settlers, whose legal right of access was supposedly guaranteed under the prior appropriation doctrine.

Regulatory Actions

A body of Washington State regulation surrounding water rights has been advanced in recent decades in an attempt to mitigate the adverse effects of depleting water resources. The Department of Ecology promulgated the “Nooksack Rule,” the in stream flow rule for the Nooksack Basin, in 1985.[9] The rule states that its  purpose is to “retain perennial rivers, streams, and lakes in the Nooksack water resource inventory area with in stream flows and levels necessary to provide for preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and navigational values, as well as recreation and water quality.”[10] Ecology has the ability to regulate water rights under RCW 90.22, RCW 90.54 and RCW 90.82.

The Nooksack Rule regulates future water consumption by establishing the appropriate gage for a minimum flow level in the river and perennial tributaries, in this case the Nooksack Basin.[11] In stream flows are the stream flows that will protect critical water resources. In stream flow rules operate as a water right, and thus they have priority dates, and operate by limiting future withdrawals.[12]

While in stream flow rules are designed to prevent withdrawals, they incorporate exemptions for wells for certain purposes.[13] Permit-exempt purposes include providing water to livestock, watering a non-commercial lawn or garden, providing water for a single home or group of homes, and providing water for industrial purposes, including irrigation.[14] Controversially, the Department of Ecology has interpreted the Nooksack Rule and similar in stream flow rules to regulate only new water right permits and not permit-exempt water rights.[15]

The Nooksack Rule has also been criticized in the decades since its passing for inadequately reflecting scientific developments in understanding pertaining to the interrelation between groundwater withdrawals and flow levels in surface water sources.[16] Critics believe that permit exemptions allow inappropriate withdrawals from underground sources that ultimately affect the surface flows the rules were designed to protect.[17]

The Growth Management Act (GMA) was passed by the State Legislature in 1990 with the intent to reduce urban sprawl and encourage development in areas with sufficient infrastructure to support population growth and  coordinate development “all to the end of assuring the highest standards of environment for living, and the operation of commerce, industry, agriculture and recreation, and assuring maximum economies and conserving the highest degree of public health, safety, morals and welfare.”[18] Importantly, the GMA requires counties to take the initiative in protecting water resources.[19] When existing regulations, such as those in Whatcom County, fail to protect the water resources despite paralleling the rules put in place by Ecology, the obligation falls to the county to track and enforce the provisions of the Growth Management Act.[20]

Whatcom County v. W. Washington Growth Mgmt. Hr’gs Bd, 381 P.3d 1 (Wash. 2016), (Hirst) Decision

The Washington Supreme Court held that the Growth Management Act (GMA) requires counties to consider water resources when making land use and zoning decision, to ensure that water is both legally and factually available.[21][22]The court ruled on an appeal brought by Whatcom county (The County)  to challenge the Western Washington Growth Management Hearings Board (The Board) decision that the county’s comprehensive plan and zoning code was in violation of the GMA.[23]The Board found that The County’s granting of permit-exempt wells, though the practice was in compliance with the Nooksack Rule developed by the Washington Department of Ecology, was impermissible under the GMA.[24] The County’s failed to determine whether the aggregate effect of such wells would impair in stream flows causing them to dip below minimum flow levels in many parts of the year was impermissible under the GMA. The Court held that a withdrawal from a controlled water source causing the flow levels to drop below the level provided for in the appropriate in stream flow rule violates the right appropriated by the rule, even if Ecology has not expressly closed the area for withdrawal.

The court found that the County failed to meet its obligations because:

“The GMA requires counties to ensure an adequate water supply before granting a building permit or subdivision application. The County merely follows the Department of Ecology’s ‘Nooksack Rule’; it assumes there is an adequate supply to provide  water for a permit-exempt well unless Ecology has expressly closed that area to permit-exempt appropriations. This results in the County’s granting building permits for houses and subdivisions to be supplied by a permit-exempt well even if the cumulative effect of exempt wells in a watershed reduces the flow in a water course below the minimum in stream flow.” [25]

Implications

The implication of this holding is that counties will be required to independently determine the effect of granting individual wells on the in stream flows or the impact on closed water bodies.[26] When the aggregate of the proposed right granted by the permit and the pre-existing rights to the same source would cause flow levels to drop below the minimum at any point in the year, Counties will be required to reject the withdrawal.

Although heralded by some environmental groups as a more proactive way of shifting responsibility to localized areas, the Hirst decision has met stark criticism from rural groups who complain that the cost of determining low-flow implications is preclusive to any development in rural areas. On October 25, 2016 Whatcom County enacted an emergency moratorium prohibiting filing, acceptance and processing of  new applications for project uses. Counties statewide are questioning their obligations and abilities to open any new wells.

Some groups cite the dissenting opinion in the decision as a more reasonable alternative; it holds that permit-exempt wells should be allowed so long as they do not fall within a closed source as identified by Ecology.[27] Whatcom County, whose rule tracked the rule followed by Ecology, would be held in compliance with the GMA under this interpretation.[28]

The outcome in this case is specific to Whatcom county, but will have implications for counties going through periodic GMA compliance updates.[29] The obligation and ability to track water rights is usually reserved to Ecology to  make the necessary impairment analysis. Under the Hirst ruling, counties are required to make a parallel analysis under that guise of a land use inquiry.[30] This means that in reviewing land use, subdivision applications, and building permits, counties operating under the GMA will have to develop a plan to address water availability.[31] Some suggest that every county operating under the GMA should commence a water study to facilitate in the development of a comprehensive plan immediately. Ideally, GMA counties will need invest time and resources to develop a plan that permits development in certain areas to guard against the backlash already flowing from housing developers and agribusiness entities in response to the moratorium in Whatcom county.[32] The ultimate impact on rural development and water availability in Washington’s counties will depend on the finding of such studies and the Counties’ ability to create comprehensive plans to guide development in compliance with such findings.


*Oliva Cares is a Junior Editor on MJEAL. She can be reached at ocares@umich.edu.

[1] 381 P.3d 1 (Wash. 2016).

[2] Wash. Rev. Code. Ann. 90.03.010 (West <2016>).

[3] See Winters v. United States, 207 U.S. 564, 575-66 (1907).

[4] Susan Williams, Overview of Indian Water Rights, http://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?article=1283&context=jcwre. (last visited Mar. 7, 2017).

[5] Gene Balk, U.S. Census: Seattle Now Fourth for Growth among 50 Biggest U.S. Cities, Seattle Times, May 19, 2016, http://www.seattletimes.com/seattle-news/data/us-census-seattle-now-fourth-among-50-biggest-us-cities/.

[6] See The USGS Water School, United States Geological Survey, https://water.usgs.gov/edu/gwdepletion.html. (last visited Mar. 7, 2017).

[7] See id.

[8] Jean Melious, State Supreme Court to Review Whatcom County’s Compliance with the Growth Management Act, Whatcom Watch Online (Aug. 2015) https://water.usgs.gov/edu/gwdepletion.html.

[9] See Wash. admin. Code , § 173-501 (1985) (amend. 1988).

[10] See id.

[11] See id.

[12] See Ann Wessel, How was the Current Nooksack In Stream Flow Rule Set and How Does it Work? Wash. State Dep’t. of Ecology, http://wria1project.whatcomcounty.org/uploads/PDF/Meeting%20Materials/Planning%20Unit/Nooksack%20rule%20-%20planning%20unit%2012-3-14%20final.pdf (last visited Mar. 7, 2017).

[13] See id.

[14] Find Out if Your Project is Exempt from a Water Right Permit, Wash. State Dep’t. of Ecology, http://www.ecy.wa.gov/programs/wr/comp_enforce/gwpe.html (last visited 8 March 2017).

[15] See Neil Caulkins, New Ruling Affirms Counties’ Big Role in Water Resource Planning, Municipal Research & Services Center, (Oct. 27, 2016) http://mrsc.org/Home/Stay-Informed/MRSC-Insight/October/Whatcom-County-v-Hirst-An-Overview.aspx.

[16] See Jean Melious, State Supreme Court to Review Whatcom County’s Compliance with the Growth Management Act, Whatcom Watch Online (Aug. 2015) https://water.usgs.gov/edu/gwdepletion.html.

[17] See id.

[18] Wash. Rev. Code. Ann. 36.70.010 (West <2016>).

[19] See Neil Caulkins, New Ruling Affirms Counties’ Big Role in Water Resource Planning, supra.

[20] See id.

[21] Whatcom County v. W. Washington Growth Mgmt. Hr’gs Bd. 381 P.3d 1, 11 (Wash. 2016).

[22] Wash. Rev. Code Ann. §§ 36.70A.070(1), 36.70A.070(5)(c)(iv) (West <2016>).

[23] See Whatcom County, 381 P.3d 1.

[24] See id. at 11.

[25] Id. at 4.

[26] See Neil Caulkins, Approaching Your Cnty’s Post Hirst Water Resource Responsibilities, Municipal Research & Services Center, (Oct. 31, 2016) http://mrsc.org/Home/Stay-Informed/MRSC-Insight/October/Post-Hirst-Water-Resource-Responsibilities.aspx (last visited Mar. 8, 2017).

[27] See Whatcom County, 381 P.3d 1 at 25 (Stephens, J., dissenting).

[28] See id.

[29] See  Neil Caulkins, Approaching Your Cnty’s Post Hirst Water Resource Responsibilities, Municipal Research & Services Center, (Oct. 31, 2016) http://mrsc.org/Home/Stay-Informed/MRSC-Insight/October/Post-Hirst-Water-Resource-Responsibilities.aspx (last visited Mar. 8, 2017).

[30] See id.

[31] See id.

[32] See   Neil Caulkins, The Effect of Hirst on Non-GMA Counties and Issues Other than Water, Municipal Research & Services Center, (Nov. 10, 2016) http://mrsc.org/Home/Stay-Informed/MRSC-Insight/November-2016/Effect-of-Hirst-on-Non-GMA-Counties.aspx (last visited Mar. 8, 2017).

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