Senate passes bill to address rural water rights controversy

The state Senate has approved a bill that seeks to reverse a recent state Supreme Court decision involving water rights and the use of domestic wells.

The legislation, billed as a fix to the recent court ruling against Whatcom County known as the Hirst decision, would ensure that permit-exempt wells could be used for development.

The case pitted Whatcom County against the Western Washington Growth Management Hearings Board. The state’s high court ruled the county had failed to protect water resources as required by the Growth Management Act and, before approving a new permit, must make sure that there is enough water in streams for fish and those holding senior water rights.

As a result, the Whatcom County Council has placed temporary restrictions on new developments in rural areas that rely on exempt wells. Lummi and Eliza islands, Point Roberts and the Lake Samish area that’s in Whatcom County aren’t affected by the restrictions.

Senate Bill 5239, co-sponsored by several Republicans, including Sen. Doug Ericksen, R-Ferndale, passed on a 28-21 vote Tuesday night after it was amended on the Senate floor. It now goes to the House for consideration.

Supporters say a legislative fix was needed after the Hirst decision prompted some counties to halt certain rural development and left hundreds of property owners who wanted to build homes in limbo.

Opponents say the bill undercuts current state water law and allows development with little to no review of its impact on those with senior water rights.

“The reason I brought this bill is to take us back to some common-sense water legislation that we had before the Hirst decision,” Republican Sen. Judy Warnick of Moses Lake, the bill’s prime sponsor, told colleagues Tuesday night.

In its 6-3 ruling, the state Supreme Court said Whatcom County had failed to protect water resources by allowing new wells to reduce flow in streams for fish and other uses. The court ruled counties must ensure, independently of the state, that water is physically and legally available before issuing building permits in certain areas.

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 streams for fish.

Warnick cited emotional testimony from property owners who said they poured their savings into building a home in a rural area only to discover they could not get a permit after the court decision.

The bill says a person who applies for a building permit – or a local agency that grants a permit – would not need to review whether the water supply impairs senior water rights.

Democratic senators who voted against the measure said they want to address the issues surrounding the Hirst decision but said this 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.”

Democratic state Sen. John McCoy of Tulalip opposed the legislation, saying “it will allow someone just buying a piece of property to take water away from someone else.”

But Republican state Sen. Randi Becker of Eastonville urged her colleagues to pass the measure.

“Let people who purchased their land in good faith and wanted to do something with them to build a home and live their life the way they had planned,” she said.

The fight that led to the Supreme Court decision had been working its way through the courts since 2013, from a challenge filed by anti-sprawl group Futurewise and four citizens – Eric Hirst, Laura Leigh Brakke, Wendy Harris and David Stalheim.

That was when the County Council appealed a state Growth Management Hearings Board order that the county do a better job with its land-use rules to protect the supply of water in streams and underground.

At issue, according to the board, was that the county had allowed exempt wells – meaning property owners didn’t need a water right for withdrawals as long as they used less than 5,000 gallons of water a day – in stream basins that had been closed to new water rights applications.

The state Supreme Court sided with the Growth Management Hearings Board.

This story was originally published March 1, 2017 at 11:45 AM with the headline "Senate passes bill to address rural water rights controversy."