House Hirst bill may provide needed clarification

Washington River
The House Agriculture and Natural Resources Committee heard testimony on HB 2740 which aims to clarify local government and Ecology authority when authorizing building permits reliant on potable water. Photo: Max Pixel

State lawmakers are hearing from building industry representatives and other stakeholders on a bill which aims to address the ongoing implications of the 2016 Washington Supreme Court decision in Whatcom County v. Eric Hirst.

While proponents say the proposal better clarifies the Department of Ecology’s authority as counties and cities look to prove adequate water supply for building permits, other stakeholders are concerned that the bill does not address outdoor water use and creates a water restriction divide between rural and urban Washingtonians.

State Rep. Joe Fitzgibbon (D-34) is the prime sponsor of HB 2740, the legislation which aims to better clarify Department of Ecology and local government power when authorizing building developments reliant on well water. Cosponsors include State Reps. Larry Springer (D-45) and Steve Tharinger (D-24).

During the January 16 House Agriculture and Natural Resources Committee meeting, State Rep. Vincent Buys (R-42) said he was concerned that the legislation focuses on “the smallest and, in most cases, unmeasurable impacts of groundwater while remaining completely silent on the massive uses of municipal water systems.”

Fitzgibbon said that city water systems are metered and already part of water and environmental conservation efforts. “The reason we are focusing on domestic wells is because the Hirst decision placed a large constraint on the drilling of domestic wells, and I think we’ve all agreed that has created a legal confusion, some for rural counties and rural property owners, and that’s the problem we are trying to solve.”

Under the bill, local governments could rely on Department of Ecology’s instream flow rules for proving adequate water to meet Growth Management Act (GMA) water quality standards for building permits. In areas where permit-exempt wells are not regulated, building permits must comply with watershed restoration and enhancement plan standards, or permit holders could submit a water well report instead.

According to the bill report, the legislation would also require Ecology to create watershed restoration and enhancement committees, and adopt certain watershed restoration and enhancement plans in certain Water Resource Inventory Areas (WRIAs).

The bill also: separates the state’s WRIAs into three tiers which are allotted different maximum water withdrawals, does not mention allocations for outdoor water use, and lowers the $1500 building permit fee to $500, with the option for local governments to levy their own fee.

Dave Christensen, Ecology’s Water Resources Manager, told panel members the bill helps “align available water supply, inform Ecology and ensure that long-term sustainable water resource management can occur.”

He added that the legislation’s clarification that Ecology’s instream flow rules regulate water availability “reduces uncertainty for local governments and land owners.”

Bill Clarke, Policy Advisor for the Washington Realtors, told committee members the bill is a step in the right direction: “Ecology’s rules (and) permits determine water availability and the structure of the bill tries to follow that, and we think that can be made to work.”

“What this bill represents is an acknowledgment to say there is going to have to be water in rural areas,” Clarke said. “Under the GMA, we don’t let purveyors run pipelines out into rural areas, so people are going to have to drill wells. We are also going to put in place a program to address in-stream flow needs.”

However, Jan Himebaugh, Government Affairs Director for the Building Industry Association of Washington (BIAW), said the association opposes the bill but appreciates the sections related to GMA and clarifying Ecology’s role for counties.

“Counties across the state are either trying to ignore the Hirst decision, which will not last long, or they are issuing (waivers) on top of a building permit…that says, ‘We are going to give you your building permit, but you may or may not have legal access to your water.’”

“That is a really tough sell at your lending institution to get a loan for that type of building permit,” she said, adding that the bill was problematic for specifying well water allotment for indoor use only.

The bill is not scheduled for executive session or another public hearing.


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