Court cases (Hirst, Foster) have left counties with a deep shift of responsibility for water use decisions. Counties are not the water authority in Washington State and if required to determine connectivity and impairment in such diminimus uses as permit-exempt wells, it could take decades to develop the resources and expertise to manage water use in each county and the state will end up with 39 different “water codes” across the state.
Considering that permit exempt wells, compared to all water uses, are the smallest impact, it is unreasonable to put burdensome requirements on individual citizens and local governments to mitigate the smallest of usage impacts. The state already puts resources into stream flow benefits and if prioritized to closed basins, could provide actual net benefits beyond any that an individual homeowner could. The Hirst decision has stopped development in several counties, with de facto moratoria on building permits due to impairment studies. Citizens are left with properties they can no longer build on, borrow money on, or even sell.
The Senate has passed a solution, Senate Bill 5239, three times. It allows local governments to rely on the state to manage water, retains all existing protections for senior water users to protect themselves, and all authority for the agency to protect the resource. It provides clear paths forward for rural well users as well as municipal providers to secure legal water in a way that protects the state’s resources. SB 5239 restores the authority to Ecology to create mitigation packages that work for both fish and people that was lost in the Foster case.
On the contrary, the House Democrats have thus far failed to find consensus on an approach, and unfortunately, this most recent attempt, HB 2226, is the wrong direction. Introduced on June 14th, House Bill 2226 abandons any solution and creates new major legal exposure for all counties whether they are GMA counties or not.
HB 2226 would Require Counties to:
- Ensure comprehensive plans and development regulations match growth with available, unappropriated water supplies; confirm that senior water rights are not being impaired by existing or planned growth; confirm that ground and surface water levels are stable and are not being impaired by existing or planned growth. All this without funding, technical support, or clear definitions. Counties do not have access to this information, the state is the manager of water rights, and language to this effect is only inviting lawsuits.
- Counties would be required to ensure that the level of planned growth in the comprehensive plan is “consistent with current scientific information on the availability of water within the area during the twenty-year planning period.” Again without funding, technical support, or clear definitions of what information would be sufficient; how consistency would be established; and whether counties could rely on information from the state.