As both chambers of the Washington State Legislature fail to agree on an acceptable solution to the ongoing permit-exempt well use and rural development issue, local and county governments are now left to determine the best way to both comply with the high court’s Hirst decision, and also provide residents the ability to build on their developments.
While awaiting a legislative solution, the Whatcom County Council on April 18 elected – for the third time since October – to extend its building moratorium, this time for six months. Also, lawmaker testimony indicates that agreement on a solution may be used as leverage for advancing capital budget negotiations.
“One of the big local concerns in coming months & years will be re-evaluation of properties that no longer can be built on or sold, because without a new private well there’s no water source,” wrote the Building Industry Association of Whatcom County in a recent update. This is an estimated $150 to $200 million evaluation loss in the county, according to Whatcom County Assessor Keith Willnauer.
In October 2016, the State Supreme Court ruled, in what is commonly referred to as the Hirst decision, that counties and cities could no longer rely on Department of Ecology’s allowance of permit-exempt wells for building permits to satisfy Growth Management Act (GMA) water quality standards.
The ruling had significant effects on rural areas of the state not connected to municipal water lines. Several counties issued emergency building moratoriums to prevent local governments and residents from performing costly hydrogeological studies to prove adequate water supply.
The Whatcom County Council issued an initial emergency 60-day building moratorium in October once news of the high court ruling hit. The council then extended it for three more months starting in December, and then another month continuing until April 29.
Warnick: House Democrats Fail To Help
State Sen. Judy Warnick (R-13) is sponsor of SB 5239, which would allow cities and counties to rely once again on Ecology standards for complying with GMA water quality rules and protecting healthy groundwater supplies. The measure passed the Senate in a 28-21 vote in February and was sent to the House Agriculture and Natural Resources Committee, but never received executive session.
“We sent House Democrats a reasonable and affordable solution for Hirst weeks ago, but they killed our bipartisan remedy and didn’t pass any bills of their own, even though the situation around small, household wells continues to get worse for Washington families,” wrote Warnick in an April 21 update. “In fact, despite their public promises to fix Hirst, House Democrats have still not reached out to me with a proposal. In light of their refusal to pass the Senate bill, it just looks like they don’t want to help.”
Despite SB 5239 missing the March 29 cutoff for passing bills out of committee during regular session, lawmakers can still bring the measure to the floor calendar once the House and Senate agree on an acceptable fix.
Hirst Fix First, Capital Budget Second
House Democrats are citing mitigation and tribal negotiations as reasons for the prolonged debate over the bill. State Rep. Derek Stanford (D-1) told the Columbia Basin Herald last week he believes that several tribes would likely take legal action to protect their senior water rights should SB 5239 pass.
“I think that approach would not stand up to a legal challenge and that’s one of the constraints we’re dealing with here. Whatever solution we come up with has to pass muster for protecting those treaty rights,” he added.
On the Senate side, Vice President Pro Tempore Jim Honeyford (R-15) indicated passage of the Hirst bill would be used as a bargaining chip for budgetary agreement.
“I’m just saying, before we can negotiate a capital budget …we need a Hirst fix first,” Honeyford told the Columbia Basin Herald.
House Deputy Majority Leader Jerry Springer (D-45) told the Herald he would schedule meetings next week on a Hirst fix, but a final resolution may have to wait until deliberations on education and the operating budget conclude.
Whatcom County Renews Building Moratorium
However, as more time passes, counties are left to determine how to move forward without a legislative solution to Hirst.
During the Whatcom Council’s April 18 meeting, council member testimony highlighted the need for a legislative solution, and the divide between taking a “whatever happens, happens” approach or continuing to halt development, erring on the side of caution.
Councilmember Ken Mann told colleagues, “I would like folks in Whatcom County, those individuals who are…‘caught in the middle,’ let them make the decision if they want to go and start to build and take that risk and then see if the state legislature does come through with a fix.”
He added, “As long as we put some kind of disclaimer on their building permit or their deed saying ‘you are at risk of the Supreme Court taking away your well and stopping your building,’ I think that would have been the best way to go…(but) it’s not black and white.”
Councilmember Todd Donovan was also hesitant: “I would rather quit asking the legislature for a fix and put more emphasis on settlement talks here … regardless of whether the legislature fixed this or not.” He vocalized the difficult position of the council, and being forced to choose between “kicking the can” in requesting extensions, versus making decisions and being ruled noncompliant.
However, Councilmember Rud Browne argued it was better to be safe than sorry. “At the moment it would be the wrong thing to step away from this and not acknowledge that … we have to comply with the Supreme Court ruling but still keep working for an underlying solution to the water problem,” he said.