November 18, 2016

Three Cases Create New Challenges To Secure Water Supply For Development

Three state court decisions have created new challenges for private parties, developers and local governments seeking to secure new water supplies. Two of these decisions directly address the utilization of permit-exempt wells, which are widely used to serve subdivisions and developments across the state. The other decision curtailed the ability of water purveyors and utilities to acquire adequate water supply to serve anticipated growth in their existing or expanded service areas.

In Hirst v. Western Washington Growth Management Hearings Board, the Washington State Supreme Court held that Growth Management Act planning counties have an independent responsibility to provide for the protection of minimum instream flows when making a project-specific water availability determination. In her dissent, Justice Stephens touched upon the decision’s practical implications: “The effect of the majority’s holding is to require individual building permit applicants to commission a hydrogeologic study to show that their very small withdrawal does not impair senior water rights, and then to have the local building department evaluate the adequacy of the scientific data." Click here for our full analysis of Hirst.

In Fox v. Skagit County, the Court of Appeals held that an applicant cannot simply rely upon a permit exempt well to demonstrate “adequate water availability” for a proposed development. The Court held that “adequate water availability” requires both factually and legally available water. Click here for our full analysis of Fox.

Taken together, Washington state courts have unambiguously stated the burden is now on the applicant to demonstrate that a permit-exempt well serving a development does not impact any senior water right, including established minimum instream flows.

In Foster v. Ecology, the Washington State Supreme Court removed one of the few remaining tools available to Washington state utilities and water purveyors seeking to deliver public water supply in watersheds where state instream flow rules exist. The Court narrowly interpreted the Overriding Consideration of Public Interest exception in the Water Code to authorize only temporary impacts to waterbodies protected under instream flow rules. Click here for our full analysis of Foster.

Foster Pepper’s Water Rights group is currently advising and assisting clients with these new legal developments. Please contact Joe Brogan ( / 206.447.6407) if you have any questions about these and other Washington state water rights law matters.

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