A 2016 state Supreme Court decision is limiting development in Southwest Washington, and time is running out for a local legislator’s attempt to nullify the ruling.
In Whatcom County vs. Hirst, the state’s high court ruled that developers must hire a hydrologist to check if new wells would affect a protected river or stream, or a senior water right. If either of those scenarios occur, the county would determine that the water is not available for legal use, and the building permit would be revoked or denied. (Hirst does not affect residential hookups to city water systems.)
State Sen. Judy Warnick, R-Moses Lake, told The Daily News in a recent interview that she’s already seen the impact of Hirst in her area.
“There are desperate people out there,” Warnick said. “We had one man, and I heard he got down on his knees, begging us, because he had sold his house. He had the property to build on, he moved a trailer up there with his family to build, and he can’t get the building permit now. He’s desperate.”
The Hirst decision likely only directly affects counties that are part of the Growth Management Act, according to 19th District Rep. Brian Blake, D-Aberdeen. Cowlitz, Wahkiakum and Grays Harbor counties are not growth management counties, but Clark, Lewis, and Pacific counties are.
Blake shared Warnick’s worries, saying it’s a “gray area” whether the Hirst decision would affect development in Cowlitz County. Still, he supports Warnick’s bill, S.B. 5239, which would revert Washington water laws back to the status quo before Hirst.
With a July 20 legislative deadline for adjournment looming, Warnick’s bill is stuck in the House despite winning easy bipartisan passage in the Senate. Environmental groups and several Native American tribes oppose the bill.
Tribes want veto power over water usage decisions near their reservation, Blake said, explaining that tribes want “consent, not consulting” authority.
Cowlitz Tribe Chairman Bill Iyall said the tribe “hadn’t really taken a position” on the legislation, but its main concern will always be the protection of resources.
Tim Trohimovich, director of planning and law for Seattle-based conservation group Futurewise, said Hirst is a “common-sense” decision that protects those with senior water rights, such as rural farmers and Native American tribes, from seeing their wells dry up.
Trohimovich said a possible solution is to implement a “water bank,” like in Kittitas County, where the county purchases senior water rights, and developers can buy water from the “bank.”
House Democrats have proposed an alternative: Put an 18-month moratorium on the Hirst decision, giving House legislators more time to work out a compromise.
Warnick doesn’t support the moratorium, calling it a “temporary solution.” Blake supports the plan, and Gov. Jay Inslee may as well, Warnick said.
“I don’t think it’s a good solution, but it may be the best we can do at this point,” Blake said.
Elaine Placido, the building and planning director for Cowlitz County, said Hirst has put developers here in limbo about undertaking new projects.
“Uncertainty is where we’re at right now,” she said. “I think uncertainty is always an enemy of development because you want regulatory certainty.”
Placido supports legislative efforts to overturn Hirst.
“I would want to maintain the right of developers and landowners to have permit-exempt wells,” she said.
Warnick maintains that anyone against her Hirst-corrective bill is ignoring the needs of rural Washington.
“It feels that there’s a war against the rural residents,” she said. “It seems like there are people in the state of Washington who would love to see us all live in high-rise apartments in the city, and that doesn’t work for those of us who farm and live in rural areas. That’s our lifestyle.”
Trohimovich says that sprawling, formerly-rural areas had already been warned.
“In 1991, the Attorney General in the state of Washington told all the counties that they shouldn’t build subdivisions unless there’s legal water available,” he said. “Unfortunately, many counties avoided that advice. So we have counties that have approved those subdivisions, and innocent homebuyers are using water that isn’t legal. Frankly, that is a shame.”