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Exempt wells and senior water rights considered at senate hearing

Two very different bills were heard in the Senate Agriculture, Water, Trade and Economic Development committee Tuesday, both written to address the same problems created after the Hirst Decision.

The Washington State Supreme Court issued a decision in October that puts the onus on counties to determine whether there’s enough water available for developers or property-owners to drill permit-exempt wells (wells that typically would pump less than 5,000 gallons of water per day).

The bills

Sen. John McCoy, D-Tulalip, is the prime sponsor on SB 5024, which would have counties establish their own water mitigation programs with state appropriations of $10 million for the 2017-19 biennium. Sen. Judy Warnick, R-Moses Lake, is prime sponsor on SB 5239, which would allow counties to rely on the Department of Ecology’s water resource rules for permitting under the Growth Management Act, as counties had before the Hirst Decision.

“Here in Washington, we’ve always pretty much regulated water. It’s a finite resource,” McCoy said at the hearing. “And therefore, we all need to work together to protect that resource.”

Warnick did not attend the hearing of her bill because she was undergoing a surgery she could not put off, according to a statement she submitted. Sen. Brad Hawkins, vice chair on the committee, R-Wenatchee, read her statement on the bill on her behalf.

The bill’s two goals are “One: it is designed to reestablish a level of coordination between local governments and the Department of Ecology’s management of water resources that existed before the Hirst Decision upended it,” according to Warnick’s statement. And “Two: It reinforces the legislature’s long-standing expectation that household wells, which are exempt from state permitting since they are limited in size, should be protected and allowed in Washington without placing unnecessary burdens on the people who want to use them.”


Bruce Wishart, representing the Sierra Club, said Warnick’s legislation didn’t take into account the localized impact exempt wells have on regional watersheds, and that senior water rights ought to be considered when developing and drilling.

“We would like to work with all the parties, all the stakeholders, find a way forward to fully mitigate, where necessary, impacts from new wells on senior water rights whether they be in stream or out of stream,” he said at the hearing.

Bryce Yadon, state policy director for Futurewise, an anti-sprawl organization that brought forward the legal challenge resulting in the Hirst Decision, said the state needed to take a different approach than they had because water was over-appropriated. He testified against Warnick’s bill.

“The GMA requires that the counties only allow development in which legal water is available, something that has been ignored for the past 27 years,” he said. “This has resulted in wells going dry across the state as new permit exempt wells are drilled.” He pointed to a report from The Spokesman Review that highlighted incidents in Spokane County where residents’ private wells were drying up.

But officials from different counties, and county organizations, favored Warnick’s bill over McCoy’s because they argued counties didn’t have the capabilities to manage their own mitigation.

“The Little Spokane River Basin, also known as WRIA 55, is a watershed that includes an in-stream flow rule that dates back to 1976. This entire watershed is currently closed for further development of permit-exempt wells until water rights mitigation program is developed,” said Spokane County Commissioner Al French.

French said he was coordinating with other counties to create a water bank, but that would involve heavy expenses, and other “operational challenges.”

“Counties need and should be able to rely on information developed by the state agency delegated the authority to manage waters for the state,“ he said. “We should be working together.”

McCoy’s bill could also lead to a patchwork of laws that would be costly and time-consuming for developers to deal with, said Laura Berg, policy director for the Washington State Association of Counties.

“We are not water experts and that puts, kind of, impairment decisions in our court,” Berg said in her testimony. “Under Sen. McCoy’s bill, by leaving that with the counties, what you’re going to end up with, instead of being able to have a proper level of service across the state….You could have 39 different ways of looking at this.”

Tim Ballew, chairman for the Lumni Nation, said he had concerns about Warnick’s bill considering he wanted to ensure senior water rights are protected.

“I urge the legislature to take a deep breath before considering rewriting 100 years of water policy,” he said.

Erin Fenner:, @erinfenner

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