On October 6, 2016 the Washington Supreme Court released its decision on Whatcom County v Hirst. This is a long awaited decision as it was a challenge to the ability of a county to grant a building permit based on the availability of adequate water. Looking at the factual history of this case, a private party, Hirst, along with others, challenged Whatcom County’s land use regulations. This case began after the Supreme Court’s Gold Star Resorts ruling which requires counties to bring their comprehensive plan into compliance with GMA. Whatcom County then passed an ordinance which they believed did just that. GMA requires counties to protect both water availability and water quality. To insure water availability, Whatcom County developed a regulation based on DOE’s regulation that allows a permit applicant (in most cases) to rely on a private well only when the well site as “proposed by the applicant does not fall within boundaries of an area where (DOE) has determined by rule that water for development does not exist.” Whatcom County Code 24.11.090(B)(3). Hirst then challenged the validity of the County’s ordinance to protect surface and groundwater resources. Our Supreme Court has ruled that GMA places and independent responsibility to ensure water availability on counties, not on DOE. It has been recognized that groundwater withdrawals can impact surface water flows, requiring both DOE and counties to consider this effect when issuing permits, either for DOE issuing for ground water appropriation, or counties for building and subdivision permits. The Supreme Court felt that requiring this extra burden on counties and DOE will protect instream flows. In the end the Supreme Court felt that Whatcom County’s comprehensive plan did not meet the GMA requirements to protect water availability.
The Supreme Court issued this ruling in a 73 page document. Said document goes into detail on the history of Washington Water law. The original water code was enacted in 1917. The Court now states that scientific understanding of water resources has increased and the restrictions on Washington’s available water. Any withdrawal of water impacts the total available water and must be subject to senior water rights and minimum instream flows.
In the end the Hirst decision will mean greater government oversight when someone wants to develop their land or drill a new well. Under GMA local governments are tasked with protecting their local environments. The question becomes, at what cost to landowners?