Most folks by now that are in any way involved in the real estate industry have heard, at least in passing, about the recent decision by the Washington State Supreme Court, commonly referred to as the “Hirst Decision.”
This decision has its roots in a wide variety of land-use rules and statutes, including the Growth Management Act (GMA), Water Rights, and rules adopted by the Department of Ecology (DOE), as well as locally adopted land-use plans. It originated in Whatcom County and was brought by the usual suspect, Futurewise, and some others. This article is only a summary, and if you are interested in a more in-depth look, just Google “Hirst Decision.” Everyone and their brothers are weighing in and trying to figure out just what it means and how it affects landowners, builders, local governments, affordable housing and almost every other aspect of life in our state.
Futurewise sued Whatcom County arguing that their comprehensive land-use plan did not adequately protect water supplies. In our state, small water withdrawals of ground water (less than 5000 gallons per day) do not generally require a water right. Where there are no municipal water systems available, typically in rural areas, there is no other real option, since it’s almost impossible to acquire a water right.
Without getting down in the weeds too far as to the exact rationale put forward by the Court, they essentially ruled that counties (and presumably cities, if applicable) cannot rely on DOE’s assessment of water availability and must make their own independent determination of the availability of water from permit-exempt wells, both legally and physically. Regrettably, the Court gave absolutely no guidance on how that might be done, and what standards would such determinations be judged by.
They said that counties cannot grant building permits without that finding of water availability.
What’s been done locally in response, then?
Chelan County and Douglas County have, it seems, taken a wait-and-see approach, reasoning that their Comprehensive Plans have not been challenged, and they do not have to update them until 2017. What will happen then is anyone’s guess. Okanogan County (which is not a GMA County) passed an emergency rule requiring that all building permits and other land-use approvals that rely on permit-exempt wells must be reviewed by the County Hearing Examiner to make a determination as to the physical and legal availability of water that does not impact senior water rights or what are called in-stream flows. As of this writing, no permits have been reviewed, so how that plays out is also up in the air.
So what is the effect of all this? Good question. Some banks, knowing the situation, are apparently refusing to issue portfolio or land loans for properties that involve permit-exempt wells. If there isn’t some fix then, rural Washington will essentially be shut down to most new construction, since as mentioned above, in most places there are no municipal water systems – most homeowners rely on permit-exempt wells. Of course this is the goal of Futurewise – stopping what they refer to as “sprawl.” In their minds, we should all be living in high-density buildings in the City so their donors can enjoy rural Washington.
There may be a legislative fix in the works. Senator Doug Ericksen from the 42nd Legislative District that includes Whatcom County is working with other Senators including Brian Dansel from the 7th and Brian Blake from the 19th to propose legislation. Undoubtedly there will be proposals in the House as well. Property rights activist groups, such as the Citizens’ Alliance for Property Rights (CAPR) are actively involved.
In the meantime, some counties, such as Pierce County, have adopted rules requiring that all building permit applications (using permit-exempt wells) must be accompanied by a hydrogeologic study demonstrating that water is available. No one knows just how much time and cost that could add to housing costs.
BNCW will be keeping in touch with this issue and offer updates just as often as we can.