Potential “Hirst” Fix Clears Washington State Senate

Legislation passed by the Washington State Senate would work to resolve the state's rural development stalls brought on by the "Hirst" decision. The measure would allow Ecology's authority to once again determine proper water quality standards for issuing building permits. Photo: Paul Brennan

After much debate and public testimony, the Washington State Senate passed E2SSB 5239 in an attempt to correct the negative economic impacts of the October 2016 State Supreme Court “Hirst” ruling. The measure passed with a 28-21 majority, with lawmakers in favor arguing it the legislature’s duty to protect a resident’s ability to build and develop in rural regions of the state. Opponents said that although a fix was needed, the measure would be too rushed and would ultimately weaken existing senior water rights.

Returning To ‘Common Sense Water Legislation’

During Tuesday, February 28 Senate floor executive session, Majority Caucus Vice Chair State Sen. Judy Warnick (R-13) told colleagues, The reason I brought this bill” forward “is to take us back to some common sense water legislation that we had before the Hirst decision last October…we (have) people who had sunk their whole life savings into property and now want to move” onto it.

The high court ruled that even though the Department of Ecology allowed “permit-exempt” wells for building structures reliant on potable water in residential areas, they did not meet Growth Management Act (GMA) water quality standards. Building permit applicants reliant on these wells did not have to prove adequate water supply, and could bypass state-issued water rights as long as they didn’t use more than 5,000 gallons of water a day. In reality, these wells make up less than one percent of total state water use.

Since the high court’s decision, counties rushed to issue emergency building moratoriums to determine how to comply with the ruling. Over the past few months, concerned citizens, realtors, agriculture sector members, and county government representatives testified in front of lawmakers on their hardships stemming from Hirst. Among their grievances was a hefty homebuilder price tag of thousands of dollars for a hydrogeological study to prove GMA compliance.

Last month, SB 5239 made its way through two committees, passing the Senate Water, Trade and Economic Development Committee with a 6-5 vote, and clearing Ways and Means with a 13-10 majority.

On Tuesday, February 28, the Senate passed E2SSB 5234 in a 28-21 vote. Lawmakers who voted in favor included Warnick, and State Sens. Steve Hobbs (D-44), Mark Mullet (D-5), Jan Angel (R-26), Randi Becker (R-2), Doug Ericksen (R-42), and Senate President Pro Tempore Tim Sheldon (D-35).

Lawmakers in opposition included State Sens. Maralyn Chase (D-32), Kevin Ranker (D-40), Democratic Leader Sharon Nelson (D-34), Democratic Caucus Vice Chair Lisa Wellman (D-41), and Democratic Caucus Chair Jim McCoy (D-38).

Giving Counties Certainty Over Rules

Under the bill, local jurisdictions could once again rely on Ecology standards for complying with GMA water quality rules and protecting healthy groundwater supplies.

“This will give the counties certainty that if they are in an area that there are no rules in place that they can issue a building permit on a well that has been dug,” Warnick said. “If there are areas that need extra mitigation, this bill allows for that as well.”

She sponsored an amendment adopted into the measure prior to passage, which specified that impairment reviews on approving or reviewing a building permit applications would not be required by the applicant, local permitting authority, city, town, or county. Also, the modification allowed for the use of well water reports to prove evidence of potable water for building project approvals.

Opponents: Bill Would Change Historic Water Law

However, McCoy urged against the amendment’s adoption, saying, “The underlying bill was bad enough and this one just makes it worse…you’re basically eliminating senior water right holders, and you are taking a brand new property owner and putting them ahead…also, it eliminates any look at instream flows.”

Other lawmakers such as Ranker argued state residents weren’t doing proper impact reviews before Hirst, which has been problematic.

“Currently, there are 5,000 to 10,000 new exempt wells going in Washington state annually,” he said. “If this bill were to pass, those wells would have little to no review.”

Chase was in agreement. “We all…want and absolutely do support development in our communities, but we do not want to do it at the expense and trying to change historic water law,” she said. “We need to have everybody, and that includes the tribes, at the table when we move forward on this.”

Restoring Rural Property Rights

Bill proponents said a solution to Hirst has been long overdue, as the ruling has left everyone from resident to local governing bodies in the dark, and the impact of the exempt wells is minimal.

Angel said, “We not only have citizens that are stuck, we have small and local government that’s stuck because they don’t know what to do, so they don’t. You’ve not only got banks that are not going to lend, and you have people that can’t continue to build.”

“If we need to keep working on it or tweaking, we can still do that, but let’s get a fix started so that we can take the pressure off of these people,” she added.

Becker said, “I have an exempt well…I don’t come close to 5,000 gallons of water in my home. I can’t imagine too many people really do when you look at it….let people who purchased their land in good faith that wanted to do something with it to build a home and live their life they want they had planned.”

Ericksen argued that the well water use from the exempt wells was “very small” and supported local residences.  He said, “I can guarantee the trees that I have planted on my property take more water out of the aquifer than my well does.”

“Let’s move forward, let’s do it for rural families, let’s do it for property rights, and to let the people go out there and live the life they want to live in Washington state,” he added.

The measure has since been sent over to the House Agriculture and Natural Resources Committee, but is not currently scheduled for a hearing.



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