Hirst decision affecting rural development; bill would give local governments more flexibility

A bill to deal with a development-related fallout of last year’s state Supreme Court’s decision passed the Republican-dominated Washington Senate.

However, the 28-21 vote on Feb. 28 mostly along party lines means that bill faces a tough road in the Democratic-controlled House.

The bill by Sen. Judy Warnick, R-Moses Lake, addresses the court’s October 2016 so-called Hirst ruling.

Hirst came about from a lawsuit by the environmental organization Futurewise against Whatcom County over a complicated technical Washington Supreme Court ruling involving the Growth Management Act. In practical terms, the ruling means a landowner must prove a new well won’t threaten nearby stream levels needed for fish.

“It got a lot people worried. … We agree that something needs to be done to address the situation,” Franklin County Administrator Keith Johnson said.

Warnick’s bill would give county governments some bureaucratic flexibility in reviewing and granting permits for wells for building projects. It also would allow a builder or developer to mitigate impact to fish or water resources from digging new wells. Part of the bill’s extra flexibility would allow that mitigation to be something other than replacing stream water affected by a new well.

Warnick said in her blog that the Hirst ruling translates to extensive studies for rural household wells before a building permit could be issued.

“The Hirst decision effectively halts development in many of Washington’s 39 counties, hitting rural areas the hardest,” she wrote. “It would have a chilling effect on rural economic development by requiring local governments to make legal determinations of water availability – work already done by the state Department of Ecology – and sets up a situation where local jurisdictions and the state could be at odds issuing permits for small household wells.”

Johnson said Franklin County has taken a “wait-and-see” attitude, expecting the 2017 legislative session will produce Hirst-related legislation.

Franklin County has not done anything to change its well permitting process since October 2016.

Meanwhile, the Benton County planning department is analyzing possible changes to its comprehensive plan due to the evolving Hirst situation. The changes will probably be locked down in a few months.

“We’re kind of in a holding pattern,” said county planning manager Jerrod MacPherson.

Also, permit applications and approvals haven’t wavered in numbers from previous October-to-February spans in Benton and Franklin counties, said Johnson and Steve Brown, head of Benton County’s building department.

During the Feb. 28 Senate floor debate, Warnick cited the opinion of the three dissenting justices that read: “The practical result of this holding is to stop counties from granting building permits that rely on permit-exempt wells. Not only is this contrary to the clear legislative purpose of RCW 19.27.097, it potentially puts counties at odds with the Department of Ecology and imposes impossible burdens on landowners.”

This issue has split along political lines.

Several county government officials and building interests supported Warnick’s bill in two Senate committee hearings. Native American tribes and environmental organizations opposed her bill in those hearings. However, the tribes and groups would have much more clout with the House Democrats when the bill hits that chamber.

Testimony favoring the bill in hearings contended that the Legislature has always expected household wells to be exempt from this issue because of their insignificant impacts. And pro-bill supporters argued the Hirst ruling has brought construction in rural areas almost to a stop.

Bill opponents argued that the bill would allow developers with more-junior water rights to take precedent over people with more-senior water rights. Opponents also argued that the bill would harm people relying on salmon for food, recreation and cultural uses. And opponents contended that the status quo requires counties to allow house construction only in areas where water is legally available.

The two sides also disagreed on the extent of new household water wells actually has on river and stream flows.