Gwen Berry
I knew that Klickitat County Commissioner Dave Sauter was coming to talk about the Hirst Decision at the HPCC meeting on September 28. But what was the Hirst Decision? I had no idea, so I started reading about it. (What did we do before the internet?) One source of information led me to another and another. Bear with me now, because I’m going to try to boil all that complexity down to a (fairly) simple explanation.
Briefly, Washington’s Growth Management Act (GMA), which was originally passed in 1990, requires counties and cities to do land use planning that accomplishes 14 different goals, one of which includes protecting rural water resources.
At the same time, there’s Washington Water Law. It’s administered by the Washington Department of Ecology, which is also charged with protecting and maintaining water resources. Washington Water Law says that certain wells don’t have to apply for water right permits – the “exempt” wells we drill on our individual properties. But with a rapidly growing (and spreading) population, the sheer number of those individual, permit-exempt wells has sometimes threatened to overwhelm water resources or impinge on senior water rights. With no permitting, Ecology has no means of managing the number of individual wells.
So the issuing of building permits became a critical means of managing water resources. That seemed reasonable, since it was a part of land use planning, and protecting water resources was a goal of that planning. Building permits would only be issued when it was clear that water was available.
But that’s where it ran into trouble. Is water ‘available’ as long as there’s some down there that you can tap into? Or, with our better understanding of how water resources are connected, it is only ‘available’ if it’s clear no other water right has prior claim to the water you’d be pumping? Who is responsible for figuring that out? For many years, the Department of Ecology made those determinations. They have even closed watersheds when necessary. Counties and cities used Ecology’s information as a basis for issuing building permits. But all along, how Ecology made those determinations was evolving, driven by increasing scientific knowledge and a series of clarifying court decisions.
Enter the Hirst Decision. In that case, Whatcom County’s basis for issuing building permits was challenged because the county made the assumption that water was available in any area Ecology hadn’t expressly closed. The challengers said that not being closed didn’t guarantee that water was available. They said the county had a responsibility under the GMA to verify for itself whether there was water available in the non-closed areas. In October 2016 the Washington Supreme Court agreed and declared that, rather than using Department of Ecology determinations, Whatcom County would now have to make their own decisions about whether there was enough water, physically and legally, to approve a building permit that would rely on a well. They also clarified that water is not considered legally available if a new well would impact a protected river or stream, or an existing senior water right.
The decision created an uproar! Suddenly every county in Washington had to figure out how that legal precedent would affect their permitting process. All property development was thrown into uncertainty. There were so many unknowns that some counties just put a moratorium on building permits until something could be done to straighten things out.
It’s easy to see some of the problems that could likely result. Blocked development causes property values to drop, takes away people’s dreams, and harms economic development. Lowered property values mean lower revenues for state and local coffers. Beyond the moratorium, having to produce proof of water availability could add a potentially expensive layer of hurdles to getting a building permit. For counties, having to determine water availability would add expensive responsibilities and shift legal liability from the Department of Ecology to the county. And it could result in differing water policies all across the state.
Fortunately for us, Klickitat County is so small that it’s only subject to a few requirements of the GMA. It isn’t required to go to the great lengths of planning that more populous counties are. That means we may escape many of the negative impacts of the Hirst Decision. Plus, the county has already been studying our water resources Dave Sauter confirmed at the HPCC meeting that it’s business at usual in Klickitat County’s permit department.
A lot of people hoped that the Washington legislature would “fix” the problem during the 2017 legislative session. A considerable amount of time was spent meeting and negotiating about the issues, but agreement was hard to come by. There was a push for a quick fix which would simply roll back the legal decision (it passed in the Senate), and late in the session there was an attempt to pass a temporary rollback for a couple of years, to allow time to develop agreed-on solutions (proposed in the House). In the end, nothing was changed; the dilemma continues.
To say that this is a complicated situation is an understatement. The Hirst Decision is at the intersection of multiple issues that have been developing for years, and the rapidly expanding population has made all the issues more pressing. The boiling pot of partisan politics isn’t conducive to quick, concerted, and also well-considered actions, and unfortunately that’s what is needed here. The legislature has before it the challenging task of sorting through the competing interests and adjusting the laws to meet new conditions, and of protecting the common good while not trampling too much on the freedoms of individual citizens.