Legislation may ease water rights uncertainty

Unknowns pester development community’s understanding of how to interpret riddle of Hirst decision

Flowing river

The general sentiment surrounding the Hirst decision, where, in October of last year, a Washington Supreme Court ruled that Watcom County’s failure to comply with the Growth Management Act meant they were not adequately protecting water rights, is one of great uncertainty.

Put plainly, the decision “requires the county to make an independent decision about legal water availability,” explained Steve Horenstein, of the Horenstein Law Group. “To put it more technically: Are you going to reduce important stream flow by digging a well in a particular area? How do you know you’re going to do that? It takes a great deal of technical analysis to know that.”

As a result of the Hirst ruling, several counties have taken action.

“What happened was we saw a lot of counties flinch and react immediately to the decision and pass their own building moratoriums in anticipation of additional litigation being filed against them,” said Jamie Howsley, land use attorney at Jordan Ramis PC and government affairs director of the Building Industry Association of Clark County. “Those were in Spokane County and Yakima and others that had historically similar conditions to what Watcom County had faced.”

Clark County, however, was not one to take action – not yet, at least.

“They determined the decision only applied to Watcom County so for the time being they were going to keep allowing exempt wells in rural areas for single-family houses. It would be business as usual,” said Howsley.

Darcy Altizer, executive director of the Southwest Washington Contractors Association, offered a similar analysis.

“From what we understand, the Hirst Decision will affect the residential builders much more than commercial. We are concerned for our members that are in residential and commercial, but the bulk of our members are in commercial and they’ll largely be unaffected,” said Altizer. “The Hirst decision could limit urban growth boundary expansion development. So that would affect the housing development in this time that we have a huge need for housing in our community.”

Within the context of the immense growth Washington has seen, the Hirst decision, among others, suggests that the court is being mindful of the potential strain on water and other natural resource availability.

“We’re at a point in time where Washington is experiencing growth and growth-related demands and I think we have a heightened sensitivity in the courts to that,” said land use lawyer Kristin French, also of Jordan Ramis PC. “I think that’s being reflected in the decision we’re seeing issued by the court.”

Speaking to the concern of those who already have permits in line for review, French reiterated that many unknowns remain.

“At this point there’s no bar to the submittal of an application, but there’s uncertainty to whether it can make it through the permit process successfully in light of this decision and in light of potential actions by the counties.”

Howsley said the BIA of Clark County had observed, “More sophisticated builders and builder-developers have taken a much more cautious approach. A lot of them fear they don’t want to be the target of a lawsuit or have one of their clients be. A lot of people are just waiting to see what comes out of the Legislature. The uncertainty is what’s really troublesome not only for the building community but also the local government as well.”

Speaking to developers in Clark County, Horenstein summed up the decision as, “It’s very burdensome, particularly in the rural areas because the stream flow studies necessary to determine whether well (newly permitted or dug) will change the level of the stream flow.”
Altizer also said that the Southwest Washington Contractors Association would be monitoring the outcome in terms of what it may mean for future development.

“We will be watching what happens because of the growth boundary expansion development,” she said. “I’m not saying it will impact commercial directly, but there’s always a possibility of some sort of domino effect in the construction industry.”

On January 23, the Department of Ecology of the State of Washington posted an updated map of domestic water availability (www.ecy.wa.gov/programs/wr/rights/domwtravail.html). Currently only Pierce, Skagit and Whatcom County maps are available. However the Department of Ecology’s website states, “Maps of other counties may be added, as requested by county governments to assist their decision-making.”

“It’s a prime example of the state of limbo and uncertainty,” French offered. “How the development community reacts depends on how you’re situated. If you’re maybe making a [business] decision about whether to build a project to market you might be reserving action … while you watch this carefully. In contrast with the family who saved for their land for five years and they have to apply – they’re going to have increased costs, we know that. It’s another layer of review and cost that homeowners need to bare.”

Those looking for a legislative solution amid the uncertainty, SB-5239, sponsored by Senator Judy Warnick (R-Moose Lake), appears to have the most support.

“It’s being called ‘the Hirst fix’ and essentially returns the playing field to where it was before the Supreme Court announced the decision and that was what the Legislature intended,” said French. “My understanding of that bill is that it has legs in the Senate and also has support of local government, which should drive it forward a little bit more in the House. We’re in a 105-day session and it may come down to the 105th day before we know [if] it passes.”

In the meantime Howsley suggests, “Stay tuned. The legislative process is going to be fascinating and fun to follow on this – especially with a split in the chambers. This is one of those unique bills where the development and business community finds itself very much aligned with local government and counties and we often don’t find that in the water land use context. Often they’re opposing views.”

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