By Matt Spaw
WNPA Olympia Bureau
and Pat Jenkins
A Senate-passed bill allowing local governments such as Pierce County to approve development using state water rules awaits action in the House of Representatives.
The legislation comes in response to the Hirst decision, in which the state Supreme Court ruled that counties must determine what water is available before issuing building permits. Senate Bill 5239 would once again allow counties to rely on Department of Ecology rules when approving permit-exempt wells — those producing less than 5,000 gallons a day for domestic use, to water livestock, or for lawn care.
State Sen. Randi Becker, whose Second Legislative District constituency includes south Pierce County areas such as Eatonville, Ashford, Graham and Roy, is among supporters of the Senate’s move as a way to help rural property owners fully utilize their land.
Becker said the Hirst decision “is crippling for rural areas where residents must depend on wells for their water. We heard a lot of passionate testimony from constituents who would suffer greatly if they lost the ability to build on their land. Now it's up to the House of Representatives to pass the bill and protect rural families' water rights.”
The bill (SB 5239) was passed by the Republican-controlled Senate Feb. 28 on a 28-21 vote. At the end of last week, it was awaiting a date for a committee hearing in the Democrat-controlled House.
SB 5239’s primary sponsor is Sen. Judy Warnick, a Republican from Moses Lake who is chairwoman of the Senate Agriculture, Water, Trade and Economic Development Committee. Becker, also a Republican, is one of the measure’s co-sponsors.
Opponents worry the bill will infringe on senior water rights and harm in-stream flow — water available in streams and rivers. The bill would allow permits to be mitigated — offset — in ways not requiring water replacement, such as improving stream habitats.
“You can end up with a beautiful stream with a nice habitat, but no water,” said Dan Von Seggern, an attorney for Center for Environmental Law and Policy. “We want to see water put back in the stream, instead.”
But supporters of the legislation argue that permit-exempt wells don’t significantly impact nearby streams and rivers because those wells account for 1 percent of water consumption. Opponents counter that the seasonal effects of permit-exempt wells are significant.
“Permit-exempt wells are typically year round, but when people are using them for irrigation, it’s largely summertime use, when stream flows are low,” Seggern said. “Permit-exempt water use can be significant when compared to stream flow in a given basin.”
Supporters of the bill are concerned that some property owners have been left unable to build on their land following the Hirst decision. They worry this will continue without a legislative fix.
“There won’t be any development opportunities in eastern Washington if this doesn’t pass,” said Evan Sheffels, lobbyist for the Washington Farm Bureau. “This bill goes a long way in reversing Hirst.”
The Hirst decision stemmed from a case in Whatcom County. The state Supreme Court ruled Whatcom officials failed to protect water resources by allowing new wells to reduce water flow in streams for fish and other purposes. The court declared that counties must ensure, independently of the state, that water is physically and legally available before issuing building permits in certain areas.
In response to that ruling, Pierce County’s Planning and Land Services Department established a department policy last November for building permits and subdivision applications using new permit-exempt wells as their water source. The county began requiring a hydrogeologic study to determine if a proposed project has legal water. Officials said permits are issued if applicants can prove – through the study -- that the new permit-exempt well won’t impact a senior water-rights holder or impair state-established instream flows.
Property owners or developers must pay for hydrogeologic studies, which can cost as much as $5,000, according to Pierce County officials. The studies are conducted by licensed hydrogeologists.
Emotional testimony over the water-rights issue has been heard from property owners in legislative committee meetings. One landowner sold his previous home before finding his new land couldn’t receive a well permit.
If there’s anything both sides agree on, it’s that the pending legislation would reject and reverse the court’s ruling.
“This bill refers us back to the pre-Hirst status quo,” Seggern said.
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.
This report is part of coverage of the Legislature and state issues provided through a reporting internship sponsored by the Washington Newspaper Publishers Association Foundation.