Washington State Lawmakers To Take Aim At High Court’s Well Water Ruling

Washington state lawmakers are indicating that a priority in the 2017 session will be mitigating or reversing a recent State Supreme Court ruling seen as effectively barring development on properties where well water is required. Seen here: a farm in rural Snohomish County. Photo: Mark Pouley.

Washington state lawmakers are aiming to mitigate a State Supreme Court decision that effectively halts new construction in many rural counties in the state. The developments come after public outcry from counties, farmers, other residents and realtors about the Whatcom County v. Eric Hirst ruling. It green-lights expensive new regulations affecting new structures requiring well water.

As a result, some counties have established building moratoriums or are revising their laws, and realtors are recommending that property owners consult lawyers or water experts about construction plans.

Legislation In The Pipeline

One key state lawmaker says he expects to see measures aiming for a reversal of Hirst. Two others were less specific but say they expect the drafting of several bills after stakeholder testimony at committee meetings to be held in November and December.

In October, the high court by a 6-3 vote in Hirst held that Whatcom County’s reliance on Washington State Department of Ecology (DOE) guidelines for maintaining appropriate watershed levels did not satisfy the state’s Growth Management Act (GMA).

A Strict Presumption Of Scarcity

The decision would require all 29 counties that formulate comprehensive plans under GMA to prove there is a “…water supply…of both sufficient quantity and quality before issuing a building permit.” County residents looking to build structures reliant on well water would likely be required to perform thousands of dollars worth of hydrogeological testing to prove senior water rights aren’t negatively affected.

“It’s very unfortunate that GMA has become a legal document instead of a planning document. It’s really tying Whatcom County’s hands” and those of “all of counties in the state…in being able to manage growth,” Whatcom County Executive Jack Louws told KGMI radio.

‘180 Degree Change’ Eyed

State Sen. Brian Dansel (R-7) said, “We have to basically write a bill that directly 180-degree changes what the Court’s decision does, and we are working on it.” He is Vice Chair of the Senate Agriculture, Water and Rural Economic Development Committee. Dansel added that he expects there will be 10 to 12 different bills in development across the State Senate and House to mitigate against the court’s ruling, and that ultimately they will be consolidated.

Senator Judy Warnick (R-13) is Chair of the Senate committee. She told Lens, “the Court has blocked development all over the state with this decision…I think rural areas are going to be hit hardest with this decision and I am very concerned about that.”

The counties were “blindsided” by the ruling, Warnick added, and bills are “definitely being drafted” to “clarify or reverse this decision. I was hoping that any decision from the Supreme Court would look at it surgically rather than a hammer on the entire state; and this is what this decision was,” said Warnick.

Testimony Sought At November 15 Session

Dansel said the ruling is “anti-private property rights,” since water is readily available but unable to be accessed. Residents should pay attention to the issue and come to Olympia prepared to testify, he added.

The Senate committee is meeting on November 15 to discuss “water availability, land use and the Hirst decision.”

“We specifically asked…those impacted by this decision to come in and give us a presentation to educate us more because we will be dealing with it,” said Warnick. “I’m hoping we will be given ideas of what we can do as a legislature to help these counties on this situation.”

Dansel said, “I am an optimist that common sense will prevail and we need to make sure it (the Hirst ruling) is one of the top priorities for the [legislative] session…to lay groundwork for what will become a successful bill that fixes the problem…”

The House is making related plans. A joint work session on the interplay between GMA and water availability will be staged December 1 by the House Agriculture and Natural Resources Committee and the House Local Government Committee.

“We’re going to have to learn about it before we can design bills to address the decision. We are going to have to…understand the impact…” State Rep. Brian Blake (D-19) told Lens. He is Chair of the House agriculture panel.

Counties React

Counties are already taking action. The Whatcom County Council on October 25 voted 6-1 to declare a 60-day emergency building moratorium in response to the Court’s decision. The ordinance states this gives the county “time to review its comprehensive plan and development regulations…and to draft and enact the necessary amendments as soon as feasible.”

Louws told KGMI radio he didn’t veto the measure because it was the “best course of action” the county could take at the time. A six-month extension of the moratorium may be needed as workarounds to the ruling are developed, he said.

Louws said the situation is likely to be fixed legislatively but failing that, it could be necessary to extend an existing water system to rural areas.

Spokane County is complying with the ruling by establishing a water bank, so residents can purchase legal water rights. Until then, building permits requiring low volume wells would “likely require hiring a hydrogeologist licensed in the Washington State to conduct an evaluation,” according to a public notice.

With property owners taking advantage of a last chance to submit building applications under existing state law, Spokane County experienced a ninefold increase in related permit requests over the six days before the Court’s decision took effect.

The county has approved an interim ordinance to allow between six months and a year to comply with Hirst.

Spokane County has also emphasized that it already imposes robust requirements on developments seeking permission to use well water, including “a well log, a four-hour pump test, a bacteriological test, and a nitrate test before a building permit is issued.”

Advice From Realtors

The ruling has prompted the real estate industry to warn affected property owners they will need expert counsel.

The Washington Association of Realtors recommends agents advise clients “in writing, to seek the advice of a water specialist,” including lawyers and hydrogeologists, where undeveloped properties may necessitate clarification of legal water supply.

The realtors, plus the Building Industry Association of Washington and the Washington Farm Bureau filed an amicus brief in Hirst arguing there was no basis for requiring a standard higher than the regulations that had been in effect through the Department of Ecology.

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