Counties are not the water authority in Washington State and if required to determine connectivity and impairment for such small scale impacts 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. (Hirst Decision)
As you may have heard on the news, negotiations broke down again yesterday on a Hirst fix. As has been the case in each special session, just as an agreement appears to have been reached, it falls apart before it can get to a vote on the floor of the House.
IN THE SENATE
The Senate position in SB 5239 has been consistent, seeking to restore the ability for local government to rely on Ecology’s water rules as a basis for available water in land use and permitting actions. This is the position WSAC has supported all along.
IN THE HOUSE
The House position, however, has changed several times. Initially, HB 1918 had a simple fee for data and separate mitigations. The bill evolved to include intensive mitigation connected to development, metering, and committees with total veto power over both mitigation and development. Other bills followed, including HB 2226, HB2239, and HB 2248.
HB 2248 offers a 2-year delay on Hirst restrictions with the exclusion of several basins and calling out only certain counties for their comprehensive plan updates. This temporary fix creates continued uncertainty not only for local governments who must plan for a twenty year period but also for applicants and homeowners who may be unable to complete a project in that time frame. It’s unclear if buyers, sellers, and lenders will see this as a guarantee or assurance of continuing adequate water supply.
Even though the House dropped HB 2248, they continued negotiating on the recent amended language to the Senate bill, with two primary disagreements. The House position would give tribal veto to any mitigation if they did not feel it was adequate. If that occurred, all development would stop until mitigation was adequate. Along with this, the Department of Ecology could administratively close a basin or stream to any appropriations without the public process of rulemaking.
The Senate would not agree to give away a state authority or obligation to another entity or sovereign government. This approval or veto on mitigation can stop development and permitting, and moves from water regulation into land use regulations. Neither the House nor the Senate would move off of their position and talks ceased.
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.
Today is the last day of this third special session. The House is likely to bring forth a slimmed down capital budget and it is unclear if it will have enough votes to pass the floor. There is speculation that the Senate will adjourn without a vote on either the Capital or Hirst bill.