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By Max Erikson
News Editor 

Hirst decision keeps capital budget frozen


August 9, 2017

Washington State Legislators finished their record setting 193-day legislative session on July 20 without passing a $4.2 billion capital budget or addressing the impact of the Hirst decision—Hirst v. Whatcom County—which puts a moratorium on permit-exempt wells, impacting rural communities’ access to water and hinders new home construction in those areas.

Both parties want a resolution, leveraging each issue against each other, as senate republicans are determined to get a vote on Senate Bill 5239—putting a “fix” on the Court’s ruling—before approving the capital budget proposed by Democrats which funds many school, social services, and park and recreation projects.

Klickitat County Commissioner Rex Johnston says that the capital budget grant funds are used for public health and senior services for the county and without a capital budget passed the county will pull money for the county coffers to keep these programs funded.

The republican controlled senate passed SB5239 four times this year but house democrats refused to bring it to a vote prior to ending this legislative cycle, proposing instead an amendment to bill 5239 which would put a two-year hold on the Court’s decision. Republicans say the amendment only kicks-the-can down the road, leaving a decision on Hirst and the capital budget in limbo.

Using Washington State’s Growth Management Act (1990) as a guideline, The Hirst v. Whatcom County ruling in October 2016 essentially stops the drilling of permit-exempt wells unless it can be proven the well will have minimal impact on existing water resources and fish habitats. The Department of Ecology was the authority for making those determinations but the Hirst decision now gives that authority to the counties.

Klickitat County Economic Development communications manager Brook Beeler says the Hirst decision may have a minimal impact on residence of Klickitat County.

“The majority of Klickitat County doesn’t have instream flow rules,” Beeler said. “Hirst may not have a big effect on Klickitat County at this point.”

Instream flow rules—or water resource management rules—are water rights for fish and other instream resources designed to protect instream resources from future withdrawals. The Hirst decision requires developers and land owners to prove that any water withdrawal would not negatively impact those resources.

Landowners must be able to prove water is legally available for their properties by using hydrogeological studies—costing tens of thousands of dollars—making new home building either unaffordable or uninhabitable because of possible restrictions on water access.

Director of Economic Development for Klickitat County, Dave McClure says that the ruling sets a precedent that makes it very challenging for comprehensive planning.

“Things aren’t changing yet, but it is sitting on the horizon.” McClure said. “Senior water rights rules have narrowed over the years making it harder to get a permit-exempt well.”

The dissenting opinion of Justice Debra Stephens, who voted against the decision, says this ruling imposes impossible burdens on land owners and best summarizes the effects of Hirst: “The practical result of this holding is to stop counties from granting building permits that rely on permit-exempt wells.”

According to the Department of Ecology, permit-exempt wells are allowed to use up to 5000-gallons of water a day. Ecology has also determined that permit-exempt wells use less than 1 percent of total water usage overall.

Under the Watershed Planning Act (1997), permit-exempt wells were designed to decrease bureaucratic red tape by granting permits for wells that would have a de minimus or negligible amount of water usage.

However, even small amounts of water usage are determined to have an impact.

“Any effect on senior water rights, even minimal, is taken into account when determining access to water.” McClure said.

The next Washington State legislative session will start again Jan. 8, 2018 unless a special session is called between now and then to resolve both the Hirst decision and the capital budget. Gov. Jay Inslee says he is willing to call a special session to resolve the issues if both sides are ready to come to a compromise.


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