Whatcom Cnty., Corp. v. Hirst, 91475–3

CourtUnited States State Supreme Court of Washington
Writing for the CourtWIGGINS, J.
Citation186 Wash.2d 648,381 P.3d 1
Parties Whatcom County, a municipal corporation, Respondent, v. Eric Hirst, Laura Leigh Brakke; Wendy Harris; David Stalheim; and Futurewise, Petitioners, Western Washington Growth Management Hearings Board, Defendant.
Docket NumberNo. 91475–3,91475–3
Decision Date06 October 2016

186 Wash.2d 648
381 P.3d 1

Whatcom County, a municipal corporation, Respondent,
Eric Hirst, Laura Leigh Brakke; Wendy Harris; David Stalheim; and Futurewise, Petitioners,

Western Washington Growth Management Hearings Board, Defendant.

No. 91475–3

Supreme Court of Washington, En Banc.

Argued Oct. 20, 2015
Filed Oct. 6, 2016

Jean O'Meara Melious, Nossaman LLP, 1925 Lake Crest Dr., Bellingham, WA, 98229–4510, Tim Trohimovich, Futurewise, 816 2nd Ave., Ste. 200, Seattle, WA, 98104–1535, for Petitioners.

Jay Palmer Derr, Tadas A. Kisielius, Duncan McGehee Greene, Van Ness Feldman LLP, 719 2nd Ave., Ste. 1150, Seattle, WA, 98104–1700, Karen Frakes, Whatcom Co. Pros. Ofc., 311 Grand Ave., Bellingham, WA, 98225–4048, for Respondent.

Daniel James Von Seggern, Center for Environmental Law and Policy, 85 S. Washington St., Ste. 301, Seattle, WA, 98104–3404, David L. Monthie, DLM & Associates, 519 75th Way N.E., Olympia, WA, 98506–9711, as Amicus Curiae on behalf of Center for Environmental Law & Policy.

Kevin R. Lyon, Sharon Ilene Haensly, Squaxin Island Legal Dept., 3711 S.E. Old Olympic Hwy., Shelton, WA, 98584–7734, as Amicus Curiae on behalf of Squaxin Island Tribe.

Alethea Hart, Snohomish County Prosecutor's Office, 3000 Rockefeller Ave., Everett, WA, 98201–4046, Josh Weiss, WA State Ass'n of Counties, 206 10th Ave S.E., Olympia, WA, 98501–1311, as Amicus Curiae on behalf of Washington State Association of Counties.

Alan Myles Reichman, Ofc. of the Atty. General/Ecology Division, P.O. Box 40117, Olympia, WA, 98504–0117, as Amicus Curiae on behalf of Washington Department of Ecology.

Sarah Ellen Mack, Tupper Mack Wells PLLC, 2025 1st Ave., Ste. 1100, Seattle, WA, 98121–2100, Bill Clarke, Attorney at Law & Government Affairs, 1501 Capitol Way S., Ste. 203, Olympia, WA, 98501–2200, as Amicus Curiae on behalf of Washington Realtors, Building Industry Association of Washington and Washington State Farm Bureau.

Dionne Maren Padilla–Huddleston, Office of the Attorney General, 800 Fifth Ave., Ste. 2000, Seattle, WA, 98104–3188, for Other Parties.


186 Wash.2d 657

We granted review of this challenge to the Western Washington Growth Management Hearings Board's (Board) decision on the validity of Whatcom County's

186 Wash.2d 658

(County) comprehensive plan and zoning code under the Growth Management Act (GMA or Act), chapter 36.70A RCW. The County argues that the Board's conclusions are based on an erroneous interpretation of the law and asks us to hold that the County's comprehensive plan protects the quality and availability of water as required by the GMA.

381 P.3d 4

¶2 We reject the County's arguments. The GMA requires counties to ensure an adequate water supply before granting a building permit or subdivision application. The County merely follows the Department of Ecology's “Nooksack Rule”;1 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. This results in the County's granting building permits for houses and subdivisions to be supplied by a permit-exempt well even if the cumulative effect of exempt wells in a watershed reduces the flow in a water course below the minimum instream flow. We therefore hold that the County's comprehensive plan does not satisfy the GMA requirement to protect water availability and that its remaining arguments are unavailing. We reverse the Court of Appeals in part and remand to the Board for further proceedings.


I. Factual History

¶3 This case is the latest step in a series of disputes concerning the County's land use regulations. The history is only summarized here; a detailed history of the disputes is contained in our 2009 opinion, Gold Star Resorts, Inc. v. Futurewise , 167 Wash.2d 723, 726–33, 222 P.3d 791 (2009). In Gold Star Resorts, we considered several challenges under the GMA to the County's comprehensive plan—specifically, challenges to provisions regarding limited areas of more

186 Wash.2d 659

intensive rural development and rural densities. We agreed with the Board and directed the County to revise its comprehensive plan in order to conform to the 1997 amendments to the GMA. Id. at 740, 222 P.3d 791.

¶4 In response to our ruling in Gold Star Resorts and a series of subsequent board rulings requiring the County to bring its comprehensive plan into compliance with the GMA, the County amended its comprehensive plan and zoning code by adopting Ordinance No. 2012–032. Ordinance No. 2012–032 was an effort to comply with the GMA's requirement that the County's rural element include measures to protect surface and groundwater resources. To accomplish this objective, the ordinance amended the County's Comprehensive Plan Policies 2DD–2.C and –2.D, and adopted by reference numerous preexisting county regulations. These policies, and the regulations they incorporate, were intended to address the GMA requirements to protect both water availability and water quality.

¶5 Regarding water availability, the County's development regulations adopt Ecology's regulations—the regulations allow a subdivision or building permit applicant to rely on a private well only when the well site “proposed by the applicant does not fall within the boundaries of an area where [Ecology] has determined by rule that water for development does not exist.” Whatcom County Code (WCC) 24.11.090(B)(3), .160(D)(3), .170(E)(3).2

186 Wash.2d 660

II. Procedural History

¶6 Eric Hirst, Laura Leigh Brakke, Wendy Harris, David Stalheim, and Futurewise (collectively Hirst) filed a petition for review with the Board, challenging Ordinance No. 2012–032. Relevant to this appeal, Hirst challenged the adequacy of the County's measures to protect surface and groundwater resources

381 P.3d 5

(Policies 2DD.–2.C.1 through .9) and sought a declaration of invalidity.3

A. Board's discussion of applicable law

¶7 The Board held a hearing and issued a final decision and order (FDO). The Board began its decision by citing to the “Applicable Law” as provided by the GMA. As the Board observed, the GMA imposes several requirements on a local government's planning. Relevant here, the GMA requires counties to consider and address water resource issues in land use planning. Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wash.2d 144, 178, 256 P.3d 1193 (2011) (counties must regulate to ensure land use is not inconsistent with available water resources). Accordingly, a county's comprehensive plan must “ ‘provide for protection of the quality and quantity of groundwater used for public water supplies.’ ” FDO at 13 (emphasis omitted) (quoting RCW 36.70A.070(1) ). The GMA also requires counties to plan for a rural element that “ ‘indude[s] measures that ... protect ... surface water and groundwater resources.’ ” Id. at 14 (emphasis omitted) (quoting RCW 36.70A.070(5)(c)(iv) ).

¶8 The Board also noted that counties must include a rural element in their comprehensive plan that includes “ ‘lands that are not designated for urban growth, agriculture, forest, or mineral resources.’ ” Id. at 13 (quoting RCW 36.70A.070(5) ). The County's comprehensive plan must ensure that this rural element maintains its “ ‘ “[r]ural

186 Wash.2d 661

character” ’ ” by planning its land use and development in a manner that is “ ‘compatible with the use of the land by wildlife and for fish and wildlife habitat’ ” and “ ‘[t]hat are consistent with the protection of natural surface water flows and groundwater and surface water recharge and discharge areas.’ ” Id. (emphasis omitted) (quoting RCW 36.70A.030(15)(d), (g) ).

¶9 In addition to these planning requirements, the Board noted that the GMA provides 13 goals to guide the development of a county's comprehensive plan. These include a goal to “ ‘[p]rotect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water.’ ” Id. (emphasis omitted) (quoting RCW 36.70A.020(10) ). These goals “are not listed in order of priority and shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations.” RCW 36.70A.020. Read collectively, these goals convey some conceptual guidance for growth management. Richard J. Settle, Washington's Growth Management Revolution Goes to Court, 23 SEATTLE U. L. REV. 5, 8 (1999).

¶10 The Board interpreted these planning requirements and goals to indicate that

patterns of land use and development in rural areas must be consistent with protection of instream flows, groundwater recharge, and fish and wildlife habitat. A County's Comprehensive Plan rural lands provision must include measures governing rural development to protect water resources.

FDO at 21.

¶11 The GMA does not define the requirements to plan for the protection of water resources found in RCW 36.70A.070. The Act...

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