With the 2018 Washington State Legislative Session kicking off, a 2016 state Supreme Court decision on water continues to make waves in the House and Senate.
The so-called Hirst decision in October 2016 set a precedent that compels local governments and landowners to take into account the availability of water before issuing permits to developers.
The decision came after the court determined that Whatcom County had been issuing permit exemptions that violated instream flow rules designed to protect stream water levels.
According to the Department of Ecology, instream flow rules hold that water withdrawn from underground aquifers could impact the water levels in streams and rivers within the watershed.
A “Hirst fix” was a topic of contention in the Legislature last year, and the issue was not resolved.
This year’s Legislative session opened with a water bill floated by Sen. Kevin Van De Wege, D-Sequim. Senate Bill 6091, which would leave the present rules in place and give Ecology up to five years to create new rules specific to each area now affected.
Online guidance from Ecology for property owners now impacted by the decision states that a landowner could prove that drilling a well for household use won’t affect protected rivers and streams. But, a question and answer section on the site warns: “This would require a hydrogeological analysis, which can be expensive.”
Other suggestions from the department include trucking in water and collecting rainwater.
While the Hirst ruling essentially put a halt to numerous development projects across the state that would bring in revenue, the full impact has proven even more significant.
At the end of the its 2017 session, the Washington State Legislature had failed to pass a capital budget for 2018-19, which would fund the construction of parks, schools and other facilities across the state.
Tied up into this seemingly unrelated budget mess is the issue of water rights. In 2017 disagreements persisted on both sides of the aisle, as Republicans remained unwilling to agree on a capital budget until Democrats came to terms on finding a fix to the Hirst decision.
The issue remains a critical one for legislators, many of whom, along with Washington Gov. Jay Inslee, have explicitly named it among their top concerns in 2018.
But even with the new one-seat Democratic majority in the Senate, the future remains uncertain for the capital budget, whose passage requires a 60 percent majority vote in both the House and Senate.
Complicating matters further is the court’s 2015 decision in Foster vs. Yelm, which made it more difficult for Ecology to issue permits, even when it deemed projects to be of great benefit to local communities.
Ecology was previously afforded greater discretion in issuing permits, and they would sometimes allow a project to temporarily violate instream flow rules if it was determined that the project would prove beneficial in the long run.
The department could also mitigate the effects of instream flow impairments through strategies such as improving surrounding habitats, but in the Foster decision the court ruled that Ecology could not violate instream flow rules for any reason.
Van De Wege’s SB 6091 was before a committee hearing Monday afternoon, Jan. 8. The bill would require new wells to follow current statutes and rules in the interim, before Ecology comes up with new rules for each locality by 2023.
Van De Wege, who also serves as chair of the Senate committee on Agriculture, Water, Natural Resources and Parks, said the bill was far from perfect, but was a first step in allowing wells to be drilled where they currently are prohibited. Despite the temporary nature of Van De Wege’s bill and its support from the Department of Ecology, opponents descended upon the Capitol from as far as Stevens County to testify against it.
Many of the people who spoke came from rural communities to the north and east of the state, and many described the frustrations that come with their inability to build new wells. The hearing room’s seats were all but taken by dozens who arrived to display opposition.
“Washington state has become the single most difficult state to access rural groundwater for commercial purposes,” said Glen Smith of the Washington State Ground Water Association. “It’s an issue that’s sadly becoming more politicized.”
Others who testified echoed Smith and said that partisanship should have no place in the discussion.
Another common complaint referenced the blanketed nature of the rules, which were the same across the state, regardless of the diverse water needs of individual counties.
“We should know what the issues are before we start adopting legislation,” said William Palmer, of the Kitsap Alliance of Property Owners, whose members wore matching shirts that read “Don’t tread on me.”
Alex Visser is a reporter with the WNPA Olympia News Bureau.