By Tadas Kisielius
It is a generally accepted principle that use and development of property depend on water supply. To some degree, all uses of land, whether residential, commercial, industrial or agricultural, require water. Similarly, those uses of land have the potential to adversely impact water supply, both by increasing demand for the limited resource and by potentially affecting the quality of the resource.
In light of the relationship between land development and water resources, Washington statutes governing land use require local jurisdictions to consider water resources when reviewing project approvals and when planning for growth. Requirements to consider water resources in the land use approval context have been on the books for decades, to a limited degree. Since its adoption in 1969, the subdivision statute required local jurisdictions to ensure that “appropriate provisions” have been made for “water supplies” before approving a subdivision of land.1 More recently, the Legislature has increased the emphasis on water availability in the land use context with the adoption of the Growth Management Act (“GMA”), which requires local jurisdictions to consider water supply in both general planning efforts and review of specific projects.2
These statutory provisions and the more general question of the proper role of water resources management in land use law have received more scrutiny in recent years. This may be in part due to our evolving understanding of the limited nature of the water supply and the impacts that growth has on water resources.3 In academic circles, some legal scholars are pushing for even more integration between water resources management and land use decision-making.4 Advocates of this position are viewed as an off-shoot of the smart growth movement and have been coined advocates of “wet growth.”5 Generally, these scholars argue that land use and water resource laws do not adequately protect water resources.6 Some attribute declining water supply and quality to various regulatory shortcomings, including the division of land use planning authority from water resources regulatory authority.7 By way of example, responsibility for management and regulation of water resources in Washington rests primarily with the Washington State Department of Ecology (“Ecology”), while regulation of land use authority has been delegated to local governments. Several scholars have argued that this “fragmentation” bars meaningful water resources protection.8 Fundamentally, these scholars pose the provocative question of whether water law and water supply concerns should control land use.
To date in, Washington, there has been no real momentum to abandon entirely the divisions of regulatory authority over water resources and land use. Such a move seems highly unlikely. However, the recent litigation described in this article is forcing the question of what local jurisdictions should be doing to weigh water supply considerations in their land use planning and permitting processes. The outcome of these cases may be significant for land use practitioners, local jurisdictions and developers.
Section II of this paper provides a brief summary of water resources law and describes the key statutory provisions in which land use law requires consideration of water supply issues. Section III summarizes three key pending cases that interpret those statutory provisions. These cases suggest an evolving legal landscape where local jurisdictions will be under increasing pressure to play a more active role in considering and evaluating water supply needs in the context of local land use planning and permitting.
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The above excerpt is the introduction to an article that was published in Vol. 36 Issue 3 of the Environmental & Land Use Law Newsletter, published by the Washington State Bar Association. Read the full article here.