Bill to solve Hirst clears Senate

OLYMPIA — A bill aimed at solving the controversial Hirst decision, which has slowed down or halted the issuing of building permits for counties around the state, was voted out of the Senate 28 to 21 on Tuesday.

SB 5239, sponsored by Sen. Judy Warnick, R-Moses Lake, and co-sponsored by Sen. Dean Takko, D-Longview, is designed to allow those who are applying for new building permits and attempting to drill permit-exempt wells to get permits easily.

The Hirst decision was the result of a court case in Whatcom County which changed the way the Department of Ecology and county governments operate when it comes to rules and issuing building permits. The decision stops counties from relying on the Department of Ecology’s instream flow rules and may force some counties to conduct their own hydrological studies or have the consumers conduct studies before they can drill a well.

Warnick cited the Washington State Supreme Court’s minority dissenting opinion in when she spoke on the floor about her bill and said she believes her bill brings clarity to local governments and return to pre-Hirst methods.

“This will give the counties certainty,” Warnick said. “If they are in an area where there are no rules in place, that they can issue a building permit on a well that has been dug. If there are areas that need some extra mitigation, this bill allows for that as well. It brings it back to prior to the Hirst case that gives us certainty for our small withdrawals of water.”

Specifically, the bill allows landowners to use well water reports to establish whether or not a parcel of property has potable water. It also allows local governments to rely on the Department of Ecology’s rules and comprehensive plan under the Growth Management Act.

An amendment was passed on the floor which adds a section that does not require new water right holders to undergo an impairment review to have their building permits approved.

Sen. Maralyn Chase, D-Edmonds, and Sen. Kevin Ranker, D-Orcas Island, spoke out against the bill. Chase said she sees how important and timely a Hirst solution is, but does not believe Warnick’s bill is the best option.

“We all, the other side and my side, want, and absolutely do support development in our communities,” Chase said. “But we do not want to do it at the expense and trying to change historic water law. We need to have everybody, and that includes the tribes, at the table, when we move forward on this.”

Sen. John McCoy, D-Tulalip, also voted against the bill. On the floor, McCoy called the bill an unfunded mandate that could shortchange senior water rights holders and undercut current water law.

“We just heard a couple bills ago about imminent domain,” McCoy said. “You can take a look at this and this is eminent domain on water because it will allow someone who is just buying a piece of property to take water away from someone else.”

Sen. Randi Becker, R-Eatonville, Sen. Doug Erickson, R-Ferndale, and Sen. Jan Angel, R-Port Orchard, spoke in support of the bill.

Sen. Becker, R-Eatonville, said she owned land that she one day plans to develop further, but currently cannot because of the Hirst decision. Becker urged the Senate to pass the bill, comparing the Hirst issues to the 19th-century settlement of the western United States.

“This whole fight over water reminds me of how the west was won,” Becker said. “The fights that took place, the lives that were lost and the communities that were not built because of water rights in the past.”

SB 5239 will now move to the House for further consideration. Two other bills designed to solve Hirst, HB 1918 sponsored by Rep. Derek Stanford and SB 1885 sponsored by Springer and Rep. Tom Dent, R-Moses Lake, are in the House awaiting a hearing in the Appropriations Committee.

On Monday, Warnick said she anticipates working with Springer in the House to garner more Democratic support and move the bill closer to its final form.