OLYMPIA — After more than a year of hard-fought negotiations, the state Legislature passed a bipartisan fix to the Hirst water decision.
The late-night vote on Senate Bill 6091 brings clarity, certainty and, most importantly, water to those waiting to build on private property, legislators said.
Hirst is a 2016 state Supreme Court decision that changed how counties decide to approve or deny building permits that use wells for a water source.
In the decision, the court ruled that Whatcom County failed to comply with the Growth Management Act requirements to protect water resources. The ruling requires the county to make an independent decision about legal water availability, according to the state Department of Ecology.
Rep. Joel Kretz, R-Wauconda, was part of the negotiating team working to arrive at a viable solution that protects rural landowners.
“At the beginning of this process, we had an urban state Supreme Court backed by an urban Legislature deciding water law for the entire state,” said Kretz, who is also the House Republican deputy leader. “While I’m not thrilled with every aspect of this legislation, the fact is, if you own a well and have been living in limbo waiting to build on your land, you can go down and get a permit tomorrow and start building.
“Northeast Washington, for the most part, was really protected from the new restrictions and bureaucracy being pushed into place,” Kretz said. “And really, we owe that to former Sens. Bob Morton and Scott Barr, who had the foresight to work on watershed planning. We’re literally reaping significant benefit now for the work they were doing decades ago.”
Rep. Jacquelin Maycumber, R-Republic, and assistant ranking member on the House Environment Committee, said the Hirst solution will help keep housing affordable in rural Washington.
“We have a rural housing issue in our state,” said Maycumber. “Without a Hirst fix access to affordable housing in our region will decline.
“The right to water is the right to life, liberty and the pursuit of happiness. The Hirst decision was the continuation of a multi-generational decimation of rural life in our state. We’re slowly being litigated out of our liberties,” she said. “However, I’m extremely impressed by the gains House Republican negotiators were able to make. They were enough for me to cast a supporting vote and protect the 7th District.”
Maycumber said she would have preferred to see the Hirst decision overturned altogether. However, with Democrats controlling the House, Senate and governor’s mansion, “the political will in Olympia to fight the state Supreme Court is absent.”
Under provisions of the bill, most existing wells receive grandfather status, meaning any current landowner with a permit-exempt well will not be affected by the new law.
Senate Bill 6091 contains an emergency clause and takes effect immediately upon being signed by the governor. Gov. Jay Inslee signed the bill Friday morning.
While the fix brings good news to those wanting to build on private property – especially in eastern Washington – others are not in favor of it.
According to the Center for Environmental Law and Policy, the bill could bring “dire” consequences for salmon.
“Most of our state’s rivers and streams are already imperiled due to low stream flows,” the group said. “It is well-established that pumping groundwater, including unregulated water withdrawals by ‘permit-exempt’ wells, reduces streamflow. Rural development using permit-exempt wells has been happening at an accelerating pace, taking more and more water from streams and other senior users.”
“The best habitat in the world is worthless if there is not enough water in the streams,” said Dan Von Seggern, staff attorney for CELP. “As mitigation water becomes harder to find, it is inevitable that ‘out-of-kind’ mitigation will become the path of least resistance. Ecology needs to live up to its obligation to protect instream resources by carefully monitoring the watershed committees and the “offset” schemes they develop.”
“We are disappointed in leadership in the Legislature that has allowed the capital budget to be held hostage to an issue that has nothing to do with the budget.,” CELP Executive Director Trish Rolfe said. “This agreement will harm fish, senior water right holders, and tribes. We expected better.”
While lawmakers debated solutions during the 2017 Legislative session, they were unable to reach an agreement.
“It (Senate Bill 6091) grandfathers in existing wells and removes the mandate the state Supreme Court imposed on counties to find legal, available water,” said Rep. Cary Condotta, R-Wenatchee. “This would have been a huge burden, especially for small counties with limited resources and funds.
“The legislation should also clear up some of the uncertainty and doubt surrounding the court’s decision,” Condotta said. “The Department of Ecology will create concise charts for county planners, so we know what is being required under water law.
“Because we already have instream flows in Chelan County and the Methow Valley we should not much change in those areas. Finally, there is also $300 million in the capital budget for instream flow and watershed planning projects, financed over 15 years,” he said. “With the Hirst agreement we were able to pass the capital budget, which includes significant projects throughout the 12th District.