Rural landowners were suddenly hit with restrictions on building when the state Supreme Court issued a ruling – Hirst v. Whatcom County – that clamped down on the use of domestic water wells.
The October ruling said counties could no longer rely on state Department of Ecology rules for water availability when signing off on building permits. They must conduct their own analysis, which is costly and complex. Some counties responded by declaring moratoriums on permits until the issue could be sorted out. The Spokane County Commission adopted a water ordinance that says a new well cannot be drilled within 500 feet of an existing one, but there’s no guarantee this would satisfy the court.
People who purchased property under the old rules now face the prospect of not being able to build on it. Plummeting property values would also impact builders, lenders and county tax collections. The affected parties have turned to the state Legislature for relief.
Justice Barbara Madsen joined the majority in the Hirst decision, but was compelled to write a concurrence out of concern that individual landowners would get hammered under this interpretation of the Growth Management Act.
She noted: “I write separately to emphasize it is the burden of the state and local governments, independently and in cooperation, to determine water availability in the first instance. This is not a burden to be shifted onto individual permit applicants.”
Her concern is prescient, because without legislative relief, it could be up to landowners and builders to undertake complex hydrogeological studies that could be prohibitively expensive.
The state and counties should work together, as the Growth Management Act notes. But on this and many other issues, legislators issue mandates and then fail to give counties the resources they need to comply. If lawmakers don’t address the impacts of the Hirst decision, the onus will fall on permit applicants, just as Madsen feared.
Sen. Judy Warnick, R-Moses Lake, has sponsored a bill, SB 5239, that would return the issue to its pre-Hirst days. Counties could rely on the DOE’s analyses in allowing small permit-exempt wells, which constitute about 1 percent of all groundwater use. The DOE must consider fish and their habitat in devising its instream rules.
The Senate passed the bill, but the House didn’t act before the March 29 cutoff. Leadership can still revive it. Environmentalists and tribes oppose the bill, saying government already does an inadequate job of protecting fish and instream flows, which is why the lawsuit was brought in the first place.
Other bills could lead to metering household wells, giving counties the ability to establish water banks to facilitate the transfer of water from rights holders, or creating a regulatory step that includes input from all stakeholders.
It’s a complicated issue, but that’s no excuse for the Legislature to leave landowners and counties high and dry.
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