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Whatcom County v. Western Washington Growth Management Hearings Board

Washington Supreme Court
186 Wash. 2d 648 (2016)
ELI5:

Rule of Law:

The Growth Management Act (GMA) imposes an independent duty on counties to ensure that water is both factually and legally available for a proposed development before issuing a building permit or approving a subdivision. A county cannot satisfy this duty by simply deferring to Department of Ecology rules that presume water availability for permit-exempt wells in basins with impaired instream flows.


Facts:

  • Whatcom County adopted Ordinance No. 2012-032, amending its comprehensive plan to address water resource protection under the Growth Management Act (GMA).
  • The County's plan allowed building permit applicants to rely on a private, "permit-exempt" well if the well was not in an area expressly closed to such wells by the Department of Ecology's "Nooksack Rule."
  • The Nooksack Rule, established in 1985, set minimum instream flow levels for rivers and streams but did not apply these restrictions to most new permit-exempt wells.
  • Many watersheds in the County were already legally over-appropriated, and minimum instream flows in parts of the Nooksack River were not being met on an average of 100 days a year.
  • Despite water limitations, over 1,652 new permit-exempt wells were drilled in otherwise closed basins since 1997, with hundreds more applications pending.
  • The cumulative effect of these numerous small, permit-exempt wells was reducing the flow in water courses below the minimum instream flow levels required to protect fish and wildlife.

Procedural Posture:

  • Eric Hirst, other individuals, and Futurewise (collectively Hirst) filed a petition for review with the Western Washington Growth Management Hearings Board (Board), challenging Whatcom County's Ordinance No. 2012-032.
  • The Board held that the County's comprehensive plan failed to comply with the GMA's requirements to protect water availability and water quality.
  • The Board denied Hirst's request to declare the ordinance invalid and instead remanded it to the County for corrective action.
  • Both the County and Hirst appealed the Board's decision. The appeals were consolidated and certified for direct review by the Court of Appeals.
  • The Court of Appeals reversed the Board, holding that the County's plan complied with the GMA because it was consistent with the Department of Ecology's regulations.
  • Hirst successfully petitioned the Washington Supreme Court for review.

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Issue:

Does a county's comprehensive plan comply with the Growth Management Act's requirement to protect water availability when it allows the approval of building permits for developments relying on permit-exempt wells by presuming water is available, so long as the Department of Ecology has not expressly closed the area to such wells, even if minimum instream flows are not being met?


Opinions:

Majority - Wiggins, J.

No. A county's comprehensive plan does not comply with the GMA's requirement to protect water availability when it relies on a presumption of water availability for permit-exempt wells that results in the impairment of minimum instream flows. The GMA places an independent responsibility on counties, not just the Department of Ecology, to ensure water is both factually and legally available before issuing building permits. The court's precedent in Kittitas County established that 'adequate water supply' under RCW 19.27.097 requires proof of both factual and legal availability. Relying on the outdated Nooksack Rule, which does not account for the cumulative hydraulic impact of exempt wells, is an abdication of this duty. Minimum instream flows are senior water rights, and as established in Postema, subsequent groundwater appropriations—even exempt ones—cannot be allowed to impair them.


Dissenting - Stephens, J.

Yes. The county's plan complies with the GMA because the majority misinterprets the governing statute and imposes an unworkable burden on landowners and local governments. The requirement in the building code (RCW 19.27.097) for an 'adequate water supply' only requires a showing of factual availability—that water is physically present—not a complex hydrogeological study to prove legal non-impairment. The majority's holding effectively eliminates the permit-exempt well provision, requires local building departments to adjudicate complex water rights, and undermines the Water Resources Act's goal of a comprehensive, statewide water management system administered by the expert agency, the Department of Ecology. This decision creates an impractical and costly barrier to rural development that the legislature did not intend.


Concurring - Madsen, C.J.

No. The county's plan does not comply with the GMA because the county has an independent duty to make a finding of water availability and cannot simply rely on Ecology's outdated rule. However, the burden of determining water availability should not be shifted onto individual permit applicants. The GMA and Water Resources Act envision a cooperative process where the state and counties work together to determine water availability as part of their comprehensive planning in the first instance. The burden on an individual applicant to provide evidence of water only arises after the government entities have fulfilled their own statutory duties to ensure water is available through comprehensive planning.



Analysis:

This decision significantly shifted the burden of ensuring water availability from the state (Department of Ecology) to local governments (counties) under the Growth Management Act. It established that counties have an independent, affirmative duty to determine legal water availability for new development, preventing them from passively deferring to outdated state regulations. This holding forces counties to confront the cumulative impact of permit-exempt wells on senior water rights and instream flows, thereby limiting rural development in water-scarce areas. The ruling underscores that land use planning must be actively integrated with water law principles, requiring a case-by-case analysis of water availability rather than reliance on broad regulatory presumptions.

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