Editor’s note: Today’s editorial was written by state Rep. Jim Walsh (R-Aberdeen) of the 19th District. Editorial content from other sources is provided to give readers a sampling of regional and national opinion and does not necessarily reflect positions endorsed by the Editorial Board of The Daily News.
The State Supreme Court’s Hirst decision—published last fall—is poorly written, poorly reasoned and has caused job-killing uncertainty in Washington’s real estate and construction industries. It overturns decades of legal precedent and commercial practice, calling into question whether permit-exempt residential wells are actually exempt from permits.
This is bad. It’s especially harmful to rural parts of the state, which rely on wells.
Good news: The legislature has a bill that can fix the trouble caused by Hirst. State Sen. Judy Warnick’s SB 5239 clears up the confusion and states clearly that residential permit-exempt wells are just that: exempt from permits. No meters, no excessive permitting expenses.
Why is this Hirst fix important?
To answer that, let’s take a close look at the decision. While it’s called Hirst (after one of the plaintiffs), the underlying lawsuit was conceived and executed by Futurewise—a Seattle-based environmentalist group that has a long history of antagonism against rural communities.
Futurewise lawyers argued that Whatcom County was issuing too many building permits in rural areas. They claimed that the Growth Management Act (GMA) requires counties to limit rural real estate development if that development impacts “instream flows” that feed water into creeks, rivers and other surface water.
Some lower courts sided with Whatcom County, so the case ended up at the State Supreme Court—which issued a split-decision in favor of the Seattle enviros. Writing for that 6-3 majority, Justice Charlie Wiggins stated:
The GMA requires counties to ensure an adequate water supply before granting a building permit or subdivision application. [Whatcom] County merely follows the Department of Ecology’s “Nooksack Rule”; it assumes there is an adequate supply to provide water for a permit-exempt well unless Ecology has expressly closed that area to permit-exempt appropriations.
Ecology’s Nooksack Rule had been standard practice in Washington for decades. But the Futurewise lawyers didn’t like it. They wanted a new standard: that the GMA required counties to obtain evidence that water is “legally available” before issuing building permits. Wiggins obliged them.
In other parts of the decision, Wiggins shifted awkwardly between his own analysis and cherry-picked quotes from statute, case law and law review articles. This created a tone that sounds more like a partisan speech than impartial reasoning:
Importantly, the GMA concentrates future growth into urban growth areas. Through this requirement, “the Act seeks to minimize intrusion into resource lands and critical areas, preserve large tracts of open space easily accessible to urban residents, foster a sense of special identity by separating communities with great expanses of sparsely populated rural land, and induce sufficient development density to be efficiently served by mass transportation and other public facilities.” Put another way, the Act concentrates development in cities.
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“Sparsely populated rural land” (the quoted passage comes from a law review article, not statute or case law)—according to Wiggins, that’s the goal of the GMA. And if rural land isn’t sparsely populated enough, state agencies can force more sparseness.
He went on to write that Whatcom County’s comprehensive plan: “fails to limit rural development to protect ground or surface waters with respect to permit-exempt wells as required by RCW 36.70A.070(5)©(iv).” But that section of the RCW doesn’t require a county to “limit” rural development. The word “limit” doesn’t appear anywhere in that section.
So, the Hirst decision is a mess, logically and structurally. That may explain why the court was split. The dissenting opinion—and it’s scathing—was written by Justice Debra Stephens. She started like this:
The majority’s decision hinges on an interpretation of RCW 19.27.097 that is unsupported by the plain language of the statute, precedent, or common sense. The practical result of this holding is to stop counties from granting building permits that rely on permit-exempt wells. Not only is this contrary to the clear legislative purpose of [state law], it potentially puts counties at odds with the Department of Ecology and imposes impossible burdens on landowners.
She went on to argue that state law does not require a building-permit applicant to prove that a permit-exempt well will not impair senior water rights:
The plain language of RCW 19.27.097 supports this interpretation. The statute uses the term “adequate” to describe the water supply; it does not use “available.” This is important. In the water code, where the legislature intends an investigation of both factual and legal availability of water, it uses the term “available.” In GMA regulations, the term “adequate” refers to actual water supply, not legal availability.
Later, she concluded:
The majority’s holding pushes a massive, and likely insurmountable, burden onto individuals applying for a building permit. This was not the legislature’s intent when it enacted RCW 19.27.097. A far more sensible approach is to recognize that [state law] requires applicants to show only that sufficient water is factually adequate to support the proposed building, and that it is permissible for the county’s regulations to follow the Department of Ecology’s Nooksack Rule.
Stephens is correct—in this case and about permit-exempt wells, generally. Those wells don’t need complex and expensive hydrogeological surveys. And they don’t need meters.
Senate Bill 5239 protects permit-exempt wells. It allows reasonable rural development. It’s the best opportunity we have to take the “more sensible approach” that Justice Stephens describes in her dissent to the less sensible majority opinion in Hirst.
We should seize this opportunity.