Friday, October 7, 2016

Washington Supreme Court to Whatcom County and Ecology: Work Together to Protect Water

It’s a “blockbuster.”  It’s “BIG.”  That’s how some commentators have described yesterday’s Washington Supreme Court decision in Hirst v. Whatcom County.  As someone who’s been working on the case for a few years now, I would describe it as. . .

common sense.

The case simply says that Washington’s Growth Management Act, or GMA, means what it says.  The GMA tells local governments to plan for their fair share of population, and to do so while protecting all of the reasons that people want to live here – including clean water and habitat for fish and wildlife.  The Supreme Court found that Whatcom County has not protected its ground and surface water resources, as the GMA requires, because it approves subdivisions and building permits without determining whether water is legally available for new development. 

To anybody who has been paying attention, this cannot be a surprising result. Water scarcity has been a well-known fact in the County for at least 30 years.  In 1986, the state Department of Ecology closed most of Whatcom County to new water withdrawals, either year-round or during the dry months.  Ecology itself has said that most water in Whatcom County has already been spoken for.  

The Supreme Court paid attention to these facts.  It noted that “a large portion of the County is in year-round or seasonally closed watersheds and that most of the water in the Nooksack watershed was already legally appropriated”; that “average minimum instream flows in portions of the Nooksack River ‘are not met an average of 100 days a year’”; and that “the County recognized as early as 1999 that [its] proliferation of rural, permit-exempt wells was creating ‘difficulties for effective water resource management.’”

These are facts – facts that the County never disputed.

And yet – Whatcom County has planned for a huge increase in development in its Rural area, in closed basins.  In areas of water scarcity, where is all of this new development supposed to get water?

The answer until now has been:  from existing, senior water users, that’s where.  The County and Ecology have turned a blind eye to the fact that new development in areas where water is not legally available simply takes water away from senior users.  That’s contrary to our state’s law of prior appropriation, or “first in time and first in right,” and that’s what the Supreme Court found.

Drop by drop, well by well, the County and Ecology have turned a blind eye to the need to plan for a stable, plentiful water supply.  They have ignored stream flows that are too low, and too warm, for threatened salmon species to thrive.  They have avoided making hard decisions today, despite the fact that delay will only make tomorrow’s decisions even more difficult.

In this case, Whatcom County pointed fingers at Ecology, saying “They let us do it!”  Ecology pointed its finger back to an undocumented past, claiming that when it adopted the Nooksack instream flow rule in 1986, Ecology didn’t know that cumulative groundwater withdrawals by permit-exempt wells could affect streams.  Based on this post hoc recollection of 30-year old beliefs, Ecology argued that nobody – neither Ecology nor the County – has any obligation to address the water rights or water demands of new rural permit-exempt wells.

The Supreme Court was having none of it.  It told the County that land use planning is, indeed, the County’s job, and that “the GMA holds counties responsible for land use decisions that affect groundwater resources.”  With respect to the need to respond to changed circumstances, the Court observed that, “[a]s scientific understanding of water resources has increased, so too have Washington’s restrictions on the availability of water.” As “Washington’s population increase[s] and the limitations on its natural resources become more apparent,” state law has made it clear that “sufficient water must be retained in streams and lakes to sustain fish and wildlife, provide recreational and navigational opportunities, preserve scenic and aesthetic values, and ensure water quality."

The Court also made it very clear that the County and Ecology need to work together to ensure water availability. Did the Court say that poor li’l Whatcom County will have to take over Ecology’s role in water law?  No, it did not.  It said that state law makes it very clear that Ecology needs to work with the County.

And given the most basic law of small-e ecology – that the earth is an interrelated system – how on earth could we continue to justify making land use decisions and water decisions in two separate silos? Sure, it’s easier for the County to make land use decisions without paying any attention to water supply. Sure, Ecology would rather not bother with land use decisions that also have the effect of allocating water through new permit-exempt wells, even where water is not legally available.  But now we know that operating within silos is not only a violation of natural systems.  It also violates state law.

No politician, no bureaucrat operating in highly charged political times, wants to deal with issues of scarcity.  Of course, County Council members and Ecology staff would rather let future decisionmakers take the heat.  Of course, this is a bad time and we are strapped for resources and so forth and so on (the same rationale that we hear before bridges fall down and trains crash).

But if not now, when?  When will we start to plan and protect our most precious natural resource, the substance that every living thing cannot live without?  When the last drop from the last North Cascades glacier has melted into the Nooksack and flowed out to sea?  When the last salmon has gasped out its last breath?  Do we need to wait for a human and natural catastrophe before we take water scarcity seriously? 

Or can we take heed of the fact that global warming is no hoax and that Mother Nature bats last, roll up our sleeves, and get to work right now? 

Now is the right time to Get Whatcom Planning. 

Thanks, Eric Hirst, Laura Leigh Brakke, Wendy Harris, and David Stalheim!


  1. Thanks for this straightforward, commonsense analysis. Big, big, big thanks for all the blood, sweat and tears you put into this as the attorney, a too-often thankless job, and one in which the county attempted to buy a victory in the face of the facts. Thank you, thank you, thank you!

  2. Jean, clearly the outcome is a big blockbuster, and you, Eric, Laura Leigh, Wendy and David deserve all the credit that comes your way for ensuring that common sense prevails. At a time when the powerful, moneyed-interests often override good judgment, logic and wisdom, it’s noteworthy that all of you persisted to Get Whatcom Planning with intelligence. Thank you.

  3. As a senior water right holder (1939), I applaud this decision. I have watched increased development in the Ten Mile watershed and the impact it has had on the water flows in Silver Springs creek, and Ten Mile creek.