Crucial rural water-rights issue holds up adjournment of 2017 legislative session

Sen. Tim Sheldon, D-Potlatch.

OLYMPIA – Washington’s 2017 legislative session enters its seventh record-breaking month as a water-rights issue critical to rural property owners becomes the central issue at the statehouse.

Lawmakers passed a budget June 30, averting a partial shutdown of state government – normally one of the final votes of any legislative session. But adjournment was delayed when the House failed to pass a bill overturning last fall’s Hirst decision from the state Supreme Court. That ruling makes it difficult, if not impossible, for property owners to obtain permits for new wells, and essentially creates a moratorium on rural development that could force one of the biggest reductions in rural property values the state has ever seen.

The Senate has held up passage of the state’s $4 billion capital budget, for public-works construction, until the House agrees to act.

The standoff has created an unprecedented situation as the Legislature’s third special session this year continues well into July. As of July 2, the 2017 session became the longest since the Washington Legislature adopted its current schedule in 1980. The previous record was 176 days in 2015. The Legislature’s current overtime session is scheduled to end by July 20, the 195th day.

“We’ve never seen anything like this before, but the stakes have never been so high,” said Sen. Judy Warnick, R-Moses Lake, chair of the Senate Agriculture, Water and Rural Economic Development Committee. “Rural families will face bankruptcy and worse if this ruling is allowed to stand, and those who are not directly affected will see dramatic increases in their property taxes. Yet it has taken a threat to the capital budget to get the House to take notice.

“We’ve heard the governor claim it is ‘morally repugnant’ to hold up the capital budget. But what is repugnant is to cause misery and hardship for rural Washington over a matter of urban environmental ideology. Where the capital budget is concerned, Hirst comes first.”

Warnick’s Senate Bill 5239 would restore Washington water law as it existed before the Hirst ruling last October. It has passed the Senate four times this year, but the House has refused to vote on the measure or for any other Hirst fix.

The Hirst ruling overturned decades of water law that allowed property owners to drill small wells for household use, in rural areas and in suburban zones where connections to municipal water system are not possible. These small wells have so little impact on state water supply – less than 1 percent statewide – that they have traditionally been exempted from requirements for water rights permits. In those isolated cases where water supply is a concern, the state has proven capable of regulating.

But the court’s decision has statewide effect. It held that county planning departments may no longer rely on general advice from the Department of Ecology about water availability. Instead, they must evaluate each application for new water, one-by-one, to determine whether each individual household well will reduce the overall supply of water reserved for in-stream flows for fish. This means property owners who wish to drill wells now must pay for costly hydrological studies. Yet a favorable conclusion doesn’t mean water – counties maintain they lack the ability to evaluate the information they receive, and some already have stopped issuing permits while they wait for the Legislature to act.

Washington’s experience shows that when access to water is blocked, development is halted, rural property values plummet, and property taxes are shifted to land that already has been developed.

“Every Washington resident who can’t hook up to city water ought to be very, very worried,” said state Sen. Tim Sheldon, D-Potlatch. “There really is no problem – most of these wells draw only a few hundred gallons a day, and nearly all of that is returned to the groundwater through septic systems and drainfields. What’s really going on is that the environmental crowd has been trying for years to restrict growth outside of urban areas. They’ve found the chokepoint – no water means no development. And their message to rural Washington is ‘we don’t care.’”

Environmental groups and Indian tribes are keeping up the pressure on the Democrat-controlled House to leave the ruling in place. Attempts at compromise failed when House leaders insisted on imposing hefty “mitigation” fees on new applications for water, reflecting their assumption that water usage creates harm. Meanwhile, the Senate proposal is supported by business groups and property rights organizations, and by individual property owners, many of whom testified during hearings this year that they will lose their life’s savings if the Legislature does not act.

“There probably has never been a better illustration of this state’s urban-versus-rural split, and this issue is really a test of loyalties for those Democrats who represent rural districts,” Sheldon said. “Will they vote with their party or for the people they represent? It’s unfortunate that we have had to withhold our votes for the capital budget in the Senate until this problem is resolved. Holding up the capital budget seems to have gotten Seattle’s attention. I just hope it helps bring urban Washington to its senses.”