Opinions Still Clashing Over Hirst Decision Bill

Opinions Still Clashing Over Hist Decision Bill
Now in the house, SB 5239 is receiving lively public testimony this week. The measure would reverse some of the negative economic impacts of the Hirst Supreme Court decision. Photo: Wikijazz

A proposed legislative fix to the October 2016 Washington State Supreme Court “Hirst” ruling drew attention this week from state bankers, realtors, building sector businesses, and Native American tribe representatives. Despite planned executive action, SB 5239 failed to receive a vote from the House Agriculture and Natural Resources Committee before the Wednesday, March 29 deadline for passing bills out of committee originating from the opposite house. This is not a death sentence, however, and after additional negotiations, the bill can be pulled directly to the Floor.

During the bill’s first public hearing in the House on Tuesday, March 28, proponents argued the measure would allow for the continuance of home-building in rural areas of the state and curb property value reductions. Opponents cited concern the bill would harm the state’s fish population and diminish state water quality protections.

Giving ‘Green Light’ To Rural Development

On March 28, prime sponsor State Sen. Judy Warnick (R-13) told the committee that the bill “gives a green light to a homeowner that has a few acres that would like to build a home there…to raise their family, give them the opportunity if there are no instream flow or other regulations in those areas, and there are a lot of areas that will open up for folks.”

Warnick added the bill would not prevent the state’s ongoing instream flow mitigation efforts or modify Ecology’s instream regulations.

Prior to the October 2016 State Supreme Court “Hirst” ruling, the Department of Ecology allowed “permit exempt” wells for a proposed building’s water source as long as they did not draw more than 5,000 gallons a day. However, the high court ruled that these wells did not honor Growth Management Act (GMA) water quality standards.

The decision resulted in counties issuing emergency building moratoriums to prevent violating the GMA and certain Washingtonians losing the ability to continue building their homes.

Last month, the State Senate approved the measure in a 28-21 vote. Lawmakers in favor argued the exempt wells had minimal impact on water resources, and the bill would once again allow Washingtonians to pursue their aspirations of building a home in the rural areas of the state. Opponents argued the bill would harm instream water flows and reduce the value of senior water rights.

Under SB 5239:

-counties or cities would be able to once again rely on Ecology rules to satisfy GMA water quality rules. Also, those jurisdictions could use Ecology guidelines to determine appropriate conditions for a permit exempt well

-building permit applicants can prove adequate water supply for buildings reliant on permit-exempt wells not in conflict with instream flow rules via water well reports. Also, the applicant or the local permitting authority would not be required to perform an impairment review

-local jurisdictions would have the option of requiring building permit applicants to connect to an existing public water system when safe and reasonable

-Ecology cannot require a water user to reduce water impacts outside of their own use

-In areas with instream flow rules, Ecology must determine water right permit approval on the basis of protecting existing fish and their habitat

-The rural section of a county’s comprehensive plan under GMA must include methods of protecting critical areas, surface water, and groundwater resources.

Providing Property Owners With ‘Certainty’ 

Brad Tower argued that the bill resolve the Hirst decision’s negative impact on banks and potential homebuilders across the state. He is the lobbyist for the Community Bankers of Washington.

He added that the court decision effectively decreased the value of new properties reliant on permit exempt wells.

“Some have been used for collateral on loans, some of which were a family’s plan for their ultimate family residence,” he said. “We would ask that you come up with a solution that provides those property owners certainty with which they can proceed and allows us to do our job which is to identify and value risk so we can move forward with these customers of ours and with our regulators.”

Also in agreement was Andy Mesojednik, Vice President and Commercial Lender for Aberdeen-based Bank of the Pacific.

“The Hirst decision is a direct threat to these families’ investments. One of our clients has invested in over a million dollar project currently up in Whatcom County and our bank has invested another million dollars ” he said. “A default on a project of this size…will ruin this client. Our bank will recover, but I’m worried about the future of my clients and my families.”

He added the Hirst decision affects the general contractors, carpenters, electricians, plumbers, and the businesses selling the building supplies, along with their families.

“This is a real and imminent threat to our rural economies and the living wage jobs that keep the money flowing in these local communities,” he said. “Another impact of this decision is that existing housing markets will continue to see increase in prices as the cost to build in the cities will continue to grow more expensive.”

Opposed to the bill is Dawn Vyvyan, lobbyist for the Yakama Nation and Puyallup tribe. “We don’t think there is enough protection for impairment analysis. We’ve been before you for years talking about the cumulative impact of exempt wells on fishery resources, which are the livelihood for my tribes that I am representing.”

Encouraging Growth Under GMA 

“These decisions have already had a real impact on real people,” said Jan HimebaughGovernment Affairs Director for Building Industry Association of Washington. “There are people here who have been ruined already…particularly by the Hirst decision.”

“Washington is growing and we need to make plans for that and we can’t grow without water and our cities can’t grow without their water to access urban water and our rural economies can’t grow without the ability to access the household domestic exemption as well. GMA allows for both types of growth and we need both…because we need a diversified economy, we need a diversified community throughout our state,” she added.

Although executive session was scheduled for Wednesday, March 29, no action was taken. During that committee meeting, Chair State Rep. Brian Blake (D-19) said the bill required additional negotiations which would continue over the upcoming weeks.

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