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Bill to fix rural water rights passed by state Senate

In this Dec. 6, 2016 photo, Bud Breakey and his wife Deborah pose for a photo with their daughter Kaylin, by the well they paid to drill on property they own near Bellingham, Wash. The couple hopes to live on the land soon and build a house, but in October, the Washington state Supreme Court ruled that Whatcom County failed to protect water resources by allowing new wells to reduce flow in streams for fish and other uses, leaving landowners like the Breakeys in limbo. (Ted S. Warren / AP)
By Phuong Le Associated Press

SEATTLE – Restrictions on building created last year by the state Supreme Court would be reduced under a bill approved this week by the Washington Senate.

The state Senate has approved a bill that seeks to reverse a recent state Supreme Court decision involving water rights and the use of domestic wells.

The legislation, billed as a fix to the court’s so-called Hirst decision involving water rights and the use of domestic wells, would ensure so-called permit-exempt wells could to be used for development.

The measure passed on a 28-21 vote Tuesday night after it was amended on the Senate floor. It now goes to the House for consideration.

Supporters say a legislative fix was needed after the Hirst decision prompted some counties to temporarily halt certain rural development and left hundreds of property owners who wanted to build homes in limbo.

Opponents say the bill undercuts current state water law and allows development with little to no review of its impact on those with senior water rights.

“The reason I brought this bill is to take us back to some common sense water legislation that we had before the Hirst decision,” said Republican Sen. Judy Warnick, of Moses Lake, the bill’s prime sponsor, told colleagues Tuesday night.

In its 6-3 ruling, the state Supreme Court said Whatcom County had failed to protect water resources by allowing new wells to reduce flow in streams for fish and other uses. The court said counties must ensure, independently of the state, that water is physically and legally available before issuing building permits in certain areas.

Those who supported the ruling said counties should be required to ensure that water is available before zoning for development. But many landowners said it would be too expensive and nearly impossible to prove that the new wells did not affect senior water rights, including water kept in stream for fish.

Warnick cited emotional testimony from property owners who said they poured their savings into building a home in a rural area only to discover they could not get a permit after the court decision.

The bill says a person who applies for a building permit – or a local agency that grants a permit – would not need to review whether the water supply impairs senior water rights.

Democratic senators who voted against the measure said they want to address the issues surrounding the Hirst decision but said this bill wasn’t the right way to do that.

“We all, the other side and my side, want and absolutely do support development in our communities,” said Democratic state Sen. Maralyn Chase, of Shoreline. “But we do not want to do it at the expense and trying to change historic water laws.”

Democratic state Sen. John McCoy, of Tulalip, opposed the legislation, saying “it will allow someone just buying a piece of property to take water away from someone else.”

But Republican state Sen. Randi Becker, of Eastonville, urged her colleagues to pass the measure. “Let people who purchased their land in good faith and wanted to do something with them to build a home and live their life the way they had planned,” she said.