The Fix Flops
Wednesday, April 5, 2017
THE FIX FLOPS: The easy “legislative fix” promised for rural resident well owners in Whatcom County and elsewhere around the state appears to have stalled, at least for this session, after a key committee in the lower House of Representatives in Olympia grew uncomfortable with blithely papering over a key principle of the Growth Management Act in order to declare a real and growing problem with stream flows isn’t a problem at all.
State lawmakers remain focused on budget legislation, as the 105-day regular session heads for adjournment in less than a month. The Senate unanimously adopted the state capital construction budget, and the House approved a $44.9 billion spending plan for 2017-19, suggesting the showdown over finances may not be as dire as many feared at the session’s outset. The House budget measure started out as HB 1067, the Governor’s budget request. It was substituted by the House Democrats’ spending proposal and passed by the House Committee on Appropriations after considering 59 amendments. House leaders then moved SB 5048, the state budget bill passed by the Republican-led Senate last week, to the floor, stripped it, and inserted the content of HB 1067, along with 20 floor amendments—out of 86 proposed—before passing it along strictly partisan lines.
The bill now goes back to the Senate for approval or rejection of the House amendments. If the amendments are rejected, the bill will go to a conference committee of members selected by leaders of both chambers to negotiate a final state budget measure.
Meanwhile, the House Agriculture and Natural Resource Committee took no action on a Senate bill that would roll back last year’s state Supreme Court decision that asserted counties must coordinate rural development with adequate water supply in an effort to protect stream flows and senior water rights. In response to the Court’s Hirst decision, Whatcom County Council placed temporary restrictions on new developments in rural areas in the north county’s Nooksack River basin that rely on exempt wells.
Senate Bill 5239, co-sponsored by several Republicans, including Sen. Doug Ericksen (R-Ferndale) passed on a 28-21 vote earlier this session—again along partisan lines—after it was amended on the Senate floor.
“The Senate proposal would undo an important part of the Growth Management Act and undercut 100 years of state water law,” noted Eric Hirst, one of the petitioners who successfully challenged the portion of the county’s Comprehensive Plan that governs rural lands. “In essence, the proposal would allow rural homes to jump to the head of the water-rights line. When droughts occur, those who hold senior water rights would be out of luck. Perhaps more important, the proposed legislation ignores the long-term reality that, absent serious action, our water supply/demand imbalance will get worse. It will worsen as the population grows and the adverse effects of climate change become more dramatic. Already, summer flows in our streams are declining; glaciers are shrinking and melting earlier each year; and summer air temperatures are increasing while summer precipitation is dropping, both of which are factors that increase water use for irrigation,” Hirst said.
The “legislative fix” would allow an applicant for a building permit requiring potable water to present a water well report for a permit-exempt groundwater withdrawal as evidence of an adequate water supply for the building. In other words, well drillers who would financially benefit would play a pivotal role in determining adequate supply. Enthusiasm for the lower house version of the bill appeared to fade in House committee with the proposed insertion of amendments. Notably, these included but were not limited to an amendment from the Ag committee’s ranking member Rep. Vincent Buys (R-Lynden) that “the county, city, and landowners are not responsible for addressing impacts of exempt groundwater withdrawals to water quantity and quality.”
Essentially, the amendment establishes that there is no authority or local control to address any impacts to water quality or water quantity resulting from permit-exempt groundwater withdrawals, a stunning abdication of the role counties are intended to play in planning under GMA. Under the Act, counties are presumed correct in their planning decisions “and the burden is on the challenger to establish that the decision is clearly erroneous.” It’s a high bar, but with it comes the corollary that counties are ultimately responsible for the decisions they make. Counties are granted a sovereign authority over their own lands and resources, but they cannot deed over their responsibility to govern those resources to some state agency like the Dept. of Ecology.
The county has fought GMA for 27 years primarily on claims its provisions interfere with local control, and now the county would surrender its local control? The contradiction makes sense only when understood within the imperative of unlimited growth and the county’s panic to have no responsibility for the impacts of that growth.
The Supreme Court’s ruling is not especially onerous. It primarily asserts that the county must show its work in aligning development with resources that support such development. Notably, the county has not done so; and could not make (did not even try to make) the argument to the Court that they had done so. The Court’s ruling probably does establish some ultimate limit to residential growth in rural lands, but that physical limit exists anyway—at some point in urbanization, rural character is lost.
Ericksen expressed chagrin that his bill stalled, declaring it “a huge disappointment for those of us who have made the issue a top priority for the session.
“But this is not the final word,” he said, “and the issue will remain alive as long as the Legislature remains in session.”
It will be back.