Last week, the TDN editorial board spent time on calls with state Senator Judy Warnick (R – District 13) and stateRepresentative Brian Blake (D – District 19) discussing the “Hirst decision” problem.
The Hirst decision is a court case from Whatcom County that affects the drilling of wells for residential development. The court’s decision may require homeowners to pay for expensive hydrogeologic testing of water flow before any residential building permit could be approved.
If legislation to manage impacts from the Hirst decision is not passed and signed by Governor Inslee this session, rural development could essentially be halted. As of this writing, the Legislature is working desperately to find at least a temporary fix, but so far nothing is in place. We urge lawmakers to get something done on this issue before the session ends on July 20.
Sen. Warnick is a Republican, her district is in central Washington covering some or all of Kittitas, Lincoln and Grant counties. The senator is the chairperson of the Senate Agriculture Committee, and is the counterpart to Rep. Blake, who is the chairman of the House Agriculture Committee. Sen. Warnick and Rep. Blake are key players in legislation to fix the Hirst decision ramifications.
The Hirst decision is complicated and deals with water rights, streams and fish issues. Essentially, any residence with an established well has a “water right,” which is dated. With the Hirst decision, anyone wanting to drill a new residential water well has to prove that the surrounding residences, with existing “senior water rights,” would not be negatively impacted. They would also have to prove the new well would not impact the water flow of nearby streams and, therefore, fish habitat.
The Hirst decision comes out of the Growth Management Act, which requires participating counties to protect water resources. Before the Hirst decision, residents could drill “permit-exempt” wells for domestic use.
The state Supreme Court’s decision has put some residents in a huge bind. Anyone who was in the process of building a house now cannot get a permit until a hydrogeologic engineer conducts tests. These tests could costs tens of thousands of dollars and, based on test results, the property owner’s land may become worthless.
If hydrogeologic testing shows drilling a well will affect local stream flows, then building permits would likely not be approved, and the property itself may be rendered undevelopable.
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Sen. Warnick worked a bill (SB 5239) through committee, modified it numerous times and got it to the Senate floor for a vote. The Senate passed the bill on a bi-partisan vote of 28-21, which included a “yes” vote by 19th District state Sen. Dean Takko.
The bill moved to the House for consideration but hasn’t made it out of committee. We were told part of the holdup relates to the roughly $10 million the bill would allocate to cleaning up streams. The bill apparently offered to “consult” Native American tribes on what waterways would receive funding for improvement, but the tribes wanted more “consent” type authority. Other issues exist around what the process would be, as well as who would be responsible, for deciding where the $10 million was spent.
One possible short-term solution would be some sort of 18-month fix. If there isn’t enough consensus to get a permanent fix in place by July 20, a shorter-term fix that at least allowed people with property to move forward building homes can be reached.
Rep. Blake brought up another point, which could either simplify or complicate the Hirst decision for some counties. The court’s ruling applies to counties who are subject to the Growth Management Act (GMA), but not all counties are.
For example, Cowlitz, Wahkiakum, Grays Harbor and Lewis counties are not subject to the GMA because they don’t meet the population threshold, but Pacific County opted into it.
Does this mean the Hirst ruling doesn’t apply to Cowlitz County? Blake indicated attorneys were not entirely sure whether the ruling applied to non-GMA counties or not. If 19th District counties are not affected by Hirst, getting legislation passed now for local folks wouldn’t be such a priority. Although our neighbors in Pacific County certainly want the issue resolved now.
The current legislative session has been dominated by discussion about the McCleary decision on school funding as well as the budget.
But before the session ends on July 20, it is critical legislators find a solution to the “Hirst issue” so rural communities can continue to build.
Join us in contacting 19th District legislators and encourage them to pass Hirst legislation now.