Proposed Ken Mann Resolution Hirst Decision



                                                        INTRODUCTION DATE:_____________

                                      RESOLUTION NO. _______                                              

WHEREAS, in 2012, a group of citizens and environmental groups, known as Hirst et al, challenged the Whatcom County Comprehensive Plan as it related to residential development and permit-exempt wells; and

WHEREAS, in 2013, The Growth Management Hearings Board ruled in favor of Hirst et al; and

WHEREAS, in 2013, Whatcom County appealed this ruling; and

WHEREAS, in 2013, Whatcom County contracted with Van Ness Feldman LLP, who specialize in water rights, water law and the Growth Management Act (GMA); and

WHEREAS, the State Department of Ecology, Washington Association of Realtors, and Washington Association of Counties, and other groups, sided with Whatcom County and filed Amicus briefs; and

WHEREAS, in 2015, the State Appeals Court overturned the Growth Management Hearings Board; and

WHEREAS, in 2015, Hirst et al appealed to the State Supreme Court; and

WHEREAS, Whatcom County has spent hundreds of thousands of dollars in legal fees fighting Hirst et al; and

WHEREAS, on October 6th, 2016 the Washington State Supreme Court issued its decision, now known as the Hirst ruling; and

WHEREAS, in response to the Hirst ruling, with unanimous advice from our legal staff, contract attorneys, and the administration, which includes people from both major political parties, the Whatcom County Council issued an emergency moratorium on building permits for properties relying on permit-exempt wells; and

WHEREAS, hundreds of property owners suddenly have been denied building permits for properties they have lawfully subdivided, platted, and even begun infrastructure improvements; and

WHEREAS, the Whatcom County Council believes that the Hirst decision is profoundly flawed, both in its legal reasoning and practical implications; and

WHEREAS, with the Hirst Decision, the State Supreme Court has caused devastating financial and emotional hardship for the people of Whatcom County; and

WHEREAS, residential water withdrawals from permit-exempt wells represents a tiny fraction of water consumption in Whatcom County; and

WHEREAS, Washington State and the Department of Ecology have sole responsibility for determining water availability, closing a basin, or issuing or interpreting water rights; and

WHEREAS, while the Hirst ruling impacts 29 counties planning under GMA, Whatcom County is the only defendant in this case and is therefore uniquely vulnerable and subject to immediate review for compliance and subsequent state sanctions, and

WHEREAS, half of Whatcom County’s budget comes from state or federal grants and programs, and

WHEREAS, the Whatcom County Council recognizes the precious value of clean and copious potable water; and

WHEREAS, The Whatcom County Council will continue to engage all stakeholders to collaborate on issues of water quality and water quantity; and

WHEREAS, the Whatcom County Council recognizes the financial and environmental impacts created by conversion of resource lands to low-density, residential sprawl; and

WHEREAS, denying citizens their right to use permit-exempt water withdrawals to provide for their homes and families is an inappropriate strategy for preventing sprawl; and

WHEREAS, the employees of Whatcom County are working hard to Hirst without jeopardizing the legal or financial standing of Whatcom County government; and

WHEREAS, we believe that a narrowly-focused, bi-partisan amendment to the GMA can resolve this egregious misinterpretation by the State Supreme Court; and

WHEREAS, there have been productive meetings with the State Legislature, support from the Washington State Association of Counties and other groups, and meetings with local state legislators of both parties and of both chambers; and

WHEREAS, the State Legislature alone has the power to remedy this grievous error imposed by the Supreme Court.

NOW, THEREFORE, BE IT RESOLVED The Whatcom County Council will send a letter, to be co-signed by as many other Counties as possible, to the State Legislature’s Local Government committee and Agriculture and Natural Resources committee requesting urgent attention to this matter, and requesting a rapid, narrowly-focused, bi-partisan amendment to the Growth Management Act remedying the problems created by the Hirst ruling.

The letter is attached as exhibit A and signed by Council Chair on Council letterhead.