Chris Horne, a deputy prosecuting attorney who provides legal advice to the Clark County council, began a work session on Wednesday by stating that there are no “silver bullets” to deal with the challenges posed by a state Supreme Court case that’s expected to significantly complicate water availability and possibly growth in Clark County.
“There’s not going to be an easy answer that tells you you must go a particular direction or another one that says you don’t have to do anything,” Horne told members of the county council, staff and members of the public who attended a work session Wednesday.
The topic was the state Supreme Court’s Hirst decision. Issued in October, the court’s ruling determined that under the state’s Growth Management Act, county governments must ensure that water is legally available for new developments before issuing building permits.
The decision has particular consequences for permit-exempt wells. Those are groundwater wells that serve single homes or small subdivisions and are exempt from permitting requirements if they draw no more than 5,000 gallons of water each day. These wells often are used to accommodate growth in rural areas, and as a result of the ruling county governments must independently verify that these wells won’t affect minimum stream flows or water rights held by other property owners.
Horne said that Whatcom County, where the case originated, adopted a moratorium on building permits in response to the ruling. Later this month, a new ordinance will go into effect in Whatcom County requiring the county to verify the availability of water before issuing building permits. Spokane, Okanogan and Pierce counties also have passed legislation in response to the ruling.
Horne said that the situation likely will unfold differently in Clark County. The county’s comprehensive plan, which is required by the Growth Management Act, is currently being appealed, he said.
Clark County may be one of the first counties where the decision could be “analyzed and applied” with guidance from the Growth Management Hearings Board during the appeals process, Horne said. He said that the comprehensive plan may need to be changed to ensure that future developments have legal access to water.
“This isn’t about water at all,” Chair Marc Boldt remarked at one point during the session. “This is about growth.”
Horne said that testing required to verify that there is adequate water for new development will be costly.
“The issue that this presents to the public and the county as a whole is that the cost of doing some hydrogeological testing is substantial,” he said. “The modeling required for various basins is not an inexpensive venture.”
Prior to the ruling, counties could rely on instream flow rules from the state Department of Ecology to determine if wells were allowed. During the work session Wednesday, Chuck Harman, a drinking water program manager in the county Department of Health, said that Ecology has set aside reservations for permit-exempt groundwater wells.
He said there are no closed basins in the Lewis River. In the Salmon-Washougal River Basin, the Burnt Bridge Creek sub-basin is closed to permit-exempt wells except for use by the city of Vancouver, he said. He said that Ecology is currently determining how much of the reservations have been used.
Councilor Julie Olson said that bills aimed at the situation have been introduced for the next legislative session.