The Washington Supreme Court published an exciting opinion late last week that will significantly impact water availability and planning under the Growth Management Act (GMA).  It determined that counties cannot rely upon the presumptive availability of water based upon Ecology’s Nooksack Rule for permit-exempt wells.  Whatcom County v. W. Wash. Growth Mgmt. Hr’gs Bd., Slip Opinion No. 91475-3 (October 7, 2016). It stated that “[i]n order to comply with the GMA, counties must receive sufficient evidence of an adequate water supply from applicants for building permits or subdivisions before the county may authorize development.” In an extensive dissent, Justice Stevens argued that the majority’s holding would have the practical effect of requiring individual building permit applicants to commission a hydrogeological study to show that their small withdrawal does not impair senior water rights. 

We expect a firestorm of discussion and analysis of the Court’s opinion to be forthcoming in the next few weeks once land use and water lawyers have had an opportunity to study the opinion.  There will be much more to come on this thorny issue.   

By way of contrast, the U.S. Supreme Court, as expected, denied review of Common Sense Alliance v. San Juan County, an unpublished Washington Court of Appeals case that upheld San Juan County’s 2012 update to its Critical Areas Ordinance (CAO).  The CAO permitted the County to require a 25 to 250 foot water quality buffer for land use proposals adjacent to aquatic areas, including marine waters (referred to in the case as “shorelines”), stream, lakes, and ponds.[1] The crux of the Petition for Certiorari to the U.S. Supreme Court was whether the CAO required property owners to “permanently dedicate” a conservation area to filter pollutants from stormwater that flows from other properties and crosses the shoreline lot and that such a permanent “dedication” is unconstitutional under the U.S. Constitution’s Takings Clause and case law under Nollan[2], Dolan[3] and Koontz[4] No court reviewing Common Sense Alliance has been willing to assume that the County’s CAO ‎buffer is a “dedication.”  The Washington Supreme Court denied review of the case earlier this ‎year.‎   

[1] In 2014, the County significantly amended the 2012 amendments, reducing the water quality buffers to 50-100 feet. The 2012 amendments never became effective in San Juan County.

[2] Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141 (1987).

[3] Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994).

[4] Koontz v. St. Johns River Water Management District, 133 S. Ct 2586 (2013).