Fish Or Well Water: The False Dichotomy

Property rights, including homebuilding on exempt-well parcels, have been abrogated by the state Supreme Court in its Hirst ruling. One of two Senate bills under consideration seeks to restore the essence of the pre-Hirst structure on water rights, between the State Department of Ecology, and property owners. Photo: Rishichhibber

Three months after a Washington State Supreme Court ruling effectively halted rural development that is reliant on well water, the effort to safeguard property rights and help foster badly-needed economic development outside fast-growing urban regions in the state, is gaining steam.

Two bills – one bipartisan and one Democratic – address the ruling’s impacts. Testimony on both during the Tuesday, January 24 Senate Agriculture, Water, Trade and Economic Development Committee meeting, underscored that property owners want to build new homes on parcels where that would not now be allowed. Also getting emphasis are the potential tax impacts of the ruling on rural communities, and the robust economic benefits provided by state fisheries.

Salmon: Holding Their Own

The state’s go-to yardstick – in this case applied by the high court, but often enforced by administrative agencies – pits worst-case scenarios for currently-healthy fish populations, or an imagined scarcity of rural land, against the right to develop private property, and grow rural or ex-urban economies. All this is done under the rubric of the Growth Management Act (GMA), which is badly in need of reform, according to abundant testimony at fall, 2016 legislative hearings.

A 2016 State of Salmon in Watersheds report from Governor Jay Inslee’s Salmon Restoration Office finds that of 15 species of salmon being monitored in Washington for progress toward Endangered Species Act (ESA) goals, only three are getting worse. Two are approaching ESA goals, 6 are making progress, and 4 are holding steady.

There is also abundant evidence from federal fisheries agencies that salmon are holding their own on the Snake River, where a U.S. judge last year triggered further review of possible dam removals, to protect fish populations. Domestic wells make up one percent of Washington’s water use.

Hirst Ruling

It is against this charged backdrop that effects rippled from the state high court’s October, 2016 “Hirst” ruling. Justices held that permit-exempt wells allowed under Department of Ecology guidelines did not meet GMA watershed level requirements.

In addition to blocking development on privately-owned residential land, the decision prompted several counties to issue emergency building moratoriums. The ruling also required building permit applicants to spend tens of thousands of dollars on hydro-geological studies to prove that permit-exempt wells would not harm long-standing, or senior, water rights.

SB 5239 would allow cities, towns and counties to rely on the Ecology water resource rules framework both for approving building permits requiring well water, and for developing their comprehensive plans under GMA. The bipartisan bill’s sponsors include State Sen. Judy Warnick (R-13), Sen. Dean Takko (D-19) and Majority Caucus Chair Randi Becker (R-2).

Lifting ‘Unnecessary Burdens’

Warnick is the prime sponsor of SB 5239, and Chair of the committee. She stated, “I have heard from many people from all corners of our state who are very worried that the court’s expansive interpretation of the Growth Management Act…will have severe negative consequences for property owners, local governments, rural residents, community banks, our state agencies and many others.”

Warnick continued, “SB 5239 seeks to accomplish two main goals: One, it is designed to establish a level of coordination between local governments and Ecology’s management of water resources that existed before the Hirst opinion upended it. Two, it reinforces the legislature’s long-standing expectation that household wells, which are exempt from state permitting because they are limited in size, should be protected and allowed in Washington without placing unnecessary burdens on the people who want to use them.”

State Rep. Mary Dye (R-9) in a news release this week said of Hirst, “The decision renders properties as less buildable, which decreases property value because it adds additional regulatory costs for the development of a well. This decision really impacts property values in eastern Washington. We have to fully fund basic education this session. Now, we have this decision impacting our property tax revenue that could go to fund our local schools. It really puts us in a catch-22.”

Fisheries Boost Economy

A competing, Democratic-sponsored bill, SB 5024, would allow counties to establish programs to reduce the impact of new permit-exempt wells on surface water. It would also create a committee to report the success of these efforts to Governor Jay Inslee and the legislature. Sponsors include State Sen. John McCoy (D-38), Sen. Bob Hasegawa (D-11), Sen. David Frockt (D-46) and Sen. Lisa Wellman (D-41).

McCoy said, “This state relies on the recreational and commercial fisheries of this state. Recreational fisheries bring in $1.2 billion a year, and…commercial (ones) bring in approximately $3.3 billion a year. Those are two very large industries that rely on instream flows and the ability for people outside the state to come in and harvest our salmon, so we have to be mindful of this.”

‘Worthless Property’

Bellingham resident Sue Ann Croft testified in support of Warnick’s bill. News of the Hirst decision reached her family after her son in mid-September closed on a homebuilding project involving an exempt shared well. She said, “Now, we are basically sitting almost on a worthless piece of property. The only difference now is that we can use a rain catchment system…after speaking with a consultant, it’s going to cost us $4,000 just to come up with the plan, it doesn’t include putting it in.…(and) a rain catchment system may not even be allowed later.”

Tim Ballew, Chairman for the Lummi Nation, said the tribe does not support either bill. He said the legislature should “take a deep breath before considering rewriting 100 years of water policy…” and “develop laws that are consistent with laws of nature that also acknowledge the senior water rights of the community.”

Jan Himebaugh, Government Affairs Director for the Building Industry Association of Washington, told Lens, “These are families and builders who did the land process right, they did the proper engineering, the proper reviews, the proper checks, and finally go in for the building permit, only to be denied or to have a caveat that the building permit isn’t proof of available water for now or the future – making it impossible to find a lender for construction. It is heartbreaking to hear these people’s stories.”


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