Hirst Decision Background

By November 15, 2017 Uncategorized No Comments
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The Hirst Decision
In October 2016, a 6-3 ruling by the Washington State Supreme Court changed how counties decide to approve or deny building permits that use wells for a water source.  In Whatcom County vs. Hirst, Futurewise, et al., the court ruled that the county failed to comply with Growth Management Act (GMA) requirements to protect water resources by allowing new wells to reduce flow in streams for fish and other uses.  Citing the fact that science has shown rivers and streams are generally connected to groundwater, the Court said that water is not legally available if a new well would impact a protected river or stream or an existing senior water right.

The majority opinion, written by Justice Charlie Wiggins, said all formerly permit-exempt well applications would now have to be examined for impact on senior water rights and that “the GMA explicitly assigns that task to local governments.”  As a result, under the decision counties were required to ensure, independently of the state, that water is physically and legally available before issuing building permits in certain areas.  The decision resulted in a number of counties issuing emergency building moratoriums to prevent violating the GMA and some citizens losing the ability to continue building their homes.  Frustrated property owners told lawmakers they spent thousands of dollars to prepare building lots only to discover they now can’t get a building permit.  County officials say they don’t have the resources to do hydrological studies that would be required under the ruling.

The dissenting opinion, written by Justice Debra Stephens, argued that the Legislature’s intent in creating the exemption category was to save both the applicant and the state the “trouble and expense of processing applications for small withdrawals with little impact on the total water available.”  The Hirst Decision shifted responsibility for water appropriations for these very small withdrawals from Ecology as the administrator of state water resources onto local county building departments.  Prior to the Hirst ruling, the Washington State 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.  Opponents of the ruling argue that its effect is to eliminate the category of permit-exempt wells.

Those who supported the ruling said counties should be required to ensure that water is available before zoning for development. But many landowners said it would be too expensive and nearly impossible to prove that the new wells did not affect senior water rights, including water kept in stream for fish.

Legislative Fix
In February 2017 and in each of this year’s three special sessions, the Senate passed SB 5239 by Sen. Judy Warnick (R-Moses Lake) by a vote of 28-21.  But each time the bill failed to pass the Democratically-controlled House Agriculture and Natural Resources Committee.

Under SB 5239:

  • Counties or cities would have been able to again rely on Ecology rules to satisfy GMA water quality rules. Also, those jurisdictions would have been able to use Ecology guidelines to determine appropriate conditions for a permit exempt well.
  • Building permit applicants would have been able to prove adequate water supply for buildings reliant on permit-exempt wells as not in conflict with instream flow rules via water well reports. Also, the applicant or the local permitting authority would not have been required to perform an impairment review.
  • Local jurisdictions would have had the option of requiring building permit applicants to connect to an existing public water system when safe and reasonable.
  • Ecology would have been prohibited from requiring a water user to reduce water impacts outside of their own use.
  • In areas with instream flow rules, Ecology would have had to 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 would have had to include methods of protecting critical areas, surface water, and groundwater resources.

Lawmakers in favor of Warnick’s legislation 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.  Outside proponents included bankers, realtors, and building sector businesses, who argued the measure would allow for the continuance of home-building in rural areas of the state and curb property value reductions.  On the other side, environmental groups and tribal representatives cited concern that the bill would harm the state’s fish population and diminish state water quality protections.

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

Democratic senators who voted against the measure said they wanted to address the issues surrounding the Hirst decision but Warnick’s bill wasn’t the right way to do that.  “We all, the other side and my side, want and absolutely do support development in our communities,” said Democratic state Sen. Maralyn Chase, of Shoreline.”  But we do not want to do it at the expense and trying to change historic water laws.”

Sen. Jim Honeyford (R-Toppenish), chair of the Senate Capital Budget Committee, said: “If approved by the House, [Warnick’s] bill would effectively reverse the disastrous impacts Hirst has had on rural development.  I want to see families continue to make their homes in the countryside of our beautiful state, and to do that, they must have access to reliable sources of water.”

The House reviewed several versions of a bill to address Hirst but it couldn’t reach a majority to pass one.  Democratic Rep. Steve Tharinger, who chairs the House Budget Committee, said he believes the best solution is a bill he co-sponsored that would allow property owners to obtain building permits in certain areas through 2018 while creating a legislative task force to work on long-term solutions.

The Capital Budget Impasse
Since the beginning of 2017, Senate Republicans have linked the 2017-19 Capital Budget, which includes money for new schools, state buildings and water projects in every state legislative district, to a change in state water laws that addresses Hirst.  The Democratic-controlled House approved a $4.2 billion capital budget on a strong bipartisan 92-1 vote on July 1.  But the Republican-controlled Senate did not vote on the bill.  “This was our leverage point, and that’s why we’re using it,” said Honeyford.

The Legislature did pass a stop-gap Capital Budget totaling $330 million to keep existing projects going and avoid layoffs of employees paid by that category of spending.  But a failure to pass the full Capital Budget will mean no funding for already-agreed-to new projects.  The third special session expired on July 20 with no agreement.  Democrats had offered a two-year moratorium that would have accepted all current wells under application with no requirements (the Tharinger bill, above), but the Republicans wanted a permanent solution.  Governor Inslee has said that he will call a fourth special session to pass the budget only when a Hirst agreement has been reached.  If the Capital Budget bill is not approved, new projects would remain unfunded until the 2018 session or possibly until 2019 – the next regularly-scheduled Capital Budget year.  In the meantime, the cost of projects will rise and employees at the state Department of Enterprise Services, which manages capital projects, will be laid off – further delaying projects.

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