Passion, pleas prevail as water-access remedies sought

Hirst Decision debated in Olympia
Hirst Decision impacts development
A well driller works on the end cap of a well just finished. As a result of a Supreme Court decision last fall, management of groundwater withdrawals are in turmoil as counties now left with the task are unable to determine how well systems affect nearby rivers and those already with operating wells. Rural landowners are being denied building permits as a result. — Photo courtesy of Department of Ecology

OLYMPIA Jan. 26 — A polite but passionate debate concerning water access in rural Washington unfolded Tuesday before the Senate Agriculture, Trade, Water and Economic Development Committee.

A public hearing on SB 5024 and SB 5239, aiming to relieve water resource limits as a result of a recent Supreme Court decision, drew folk who have been denied building permits because counties must now determine water availability, instead of relying on the technical expertise of the state’s Department of Ecology (DOE).

And an impassioned plea from one Whatcom County landowner displayed the intensity of the issue for those now affected by the court’s edict. As he was ending his remarks to the committee Zach Nutting rose from his chair, stepped aside, then dropped to his knees to prayerfully seek the committee’s support in resolving the issues.

For Nutting that meant restoring his ability to get a building permit so he could construct his family home on five acres he owns. He told the committee he had sold his former house and moved onto the acreage to build his new home. After obtaining permits for electricity and other elements related to construction, he was denied a building permit because it could affect nearby in-stream flows.

The Court’s decision has affected a handful of counties including Spokane, Pierce and Whatcom County. In that decision the court determined counties, as part of the duties they have under the state Growth Management Act, must determine the effects water usage has on aquifer and surface water resources. Counties relied on what the DOE determined was available water, but the court halted that relationship.

“We are technically homeless because we are thousands and thousands (of dollars) into this project. We have septic and electric, but we can’t have our building permit,” Nutting said. “I'm going to get on my knees and beg you to fix this.”

He did.

Both bills had supporters and detractors, but SB 5239 received the most passionate support from some who came to testify. The bills are in response to the Whatcom County v. Hirst decision in which the Court ruled the county violated its responsibilities outlined in the Growth Management Act. Counties must make their own decisions about whether water is available legally and physically, rather than relying on the DOE.

Whatcom County ceased issuing permits after the court decision while it attempts to deal with the new responsibility of managing the technical aspects of water sourcing formerly done by DOE. Other counties in the state have halted permitting for the same reasons as Whatcom County.

The bills’ sponsors are mostly divided along party lines. Sponsors of SB 5024 are all Democrats, while 11 out of 13 of the sponsors for SB 5239 are Republicans. Sen. Lisa Wellman, D-Mercer Island, is the only co-sponsor for both bills.

SB 5024 would allow counties to establish an optional program to mitigate surface water impacts for new permit-exempt groundwater withdrawals, such as home-use wells. Those applying for a well could use county-issued mitigation certificates — permission slips. These slips prove that the county can find water that makes up for water used by the well. All participants in the program pay the same fee. The Department of Ecology would provide ground and surface water data to county officials developing the programs.

Home-use wells use relatively little water —- less than one percent of the state’s total water — according to Sen. Jim Honeyford, R-Sunnyside. Exemptions to seeking full water rights include domestic or industrial uses not exceeding 5,000 gallons a day, as well as purposes such as stock watering or lawn care.

A seven-member committee would also be created by SB 5024, which would work with counties, tribes, rural property owners, conservation groups and various state agencies. It would submit reports to the Legislature and governor at the beginning of 2018 and 2019 that describe how groundwater availability would integrate with land-use planning.

SB 5239 would allow local jurisdictions to use the Department of Ecology’s rules when determining water availability for approving building permits. Counties and cities could also use the department’s rules as part of their comprehensive plans, which are adopted in accordance with the state Growth Management Act. The bill also determines that permit-exempt groundwater withdrawal, usually wells, cannot be deemed to be impairing minimum flow of streams.

David Danton, an operations manager for Lexar Homes, told the committee this problem is widespread. “We’re seeing home sales decline because people are turning away after seeing all the permits they need. These are impacting thousands of people,” he said.

Others who testified said SB 5239 was a poor solution to water issues. Trish Rolfe, executive director for the Center for Environmental Law and Policy, noted that section five of the bill undermines the basic principles of water law. The section, which worried other speakers, would prevent the DOE from considering permit-exempt withdrawal as damaging to in-stream flow rules.

“It makes in-stream flows a lesser water right. It will allow permit-exempt wells to irreparably harm fish and wildlife that rely on in-stream flows, including endangered salmon,” Rolfe said.

Dave Christensen, program development manager for the DOE, had problems with both bills. He did not support SB 5024 because of its significant budget impact — $10 million appropriated between June 2017 and 2019 — which is not in the governor’s budget. He also did not support SB 5239 because it gives all permit-exempt users too much freedom from DOE rules.

“We can’t support SB 5239 as written because of the blanket exemptions to all permit-exempt uses. There needs to be adequate protection for in-stream resources,” Christensen said.

Frederick Cardenas, A Spokane resident citizen who developed a well only to find his county was no longer issuing building permits, also spoke. He worked 60 hours a week for seven years to pay for the property.

“I have over $81,000 invested in this well and property. It constitutes the bulk of my wealth, which is now valued at zero,” Cardenas told the committee. He had driven to Olympia from Elk, Washington, north of Spokane, to deliver his message in person even though the committee had set up a remote hearing site in Spokane.

Dawn Vyvyan, representing the Puyallup tribe and Yakama nation, expressed her conditional support for SB 5024.

“We like ecology assisting counties and setting up a fund for mitigation. We think mitigation is one of the solutions to finding water,” Vyvyan said. “However, we would like to see the final determinations on water availability be made by the department. The tribe feels the county does not have the expertise to determine if water is available.”

(This story is part of a series of news reports from the Washington State Legislature provided through a reporting internship sponsored by the Washington Newspaper Publishers Association Foundation. Reach reporter Matt Spaw at matthewspaw@gmail.com)

A well driller works on the end cap of a well just finished. As a result of a Supreme Court decision last fall, management of groundwater withdrawals are in turmoil as counties now left with the task are unable to determine how well systems affect nearby rivers and those already with operating wells. Rural landowners are being denied building permits as a result. — Photo courtesy of Department of Ecology

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