‘Fix’ fumbled, punted
Wednesday, January 24, 2018
‘FIX’ FUMBLED, PUNTED: When the wheels of progress turn, some things get rolled and other things get crushed.
With microscopic majorities in both houses, Democrats in Olympia face a small opening through which they can get things done this session in advance of an uncertain election in November. Legislators did not want the issue of rural wells to slow them down, nor did they want to enable a persistent message that might unfold in an election year that they’re hostile to the issues of rural life. Meanwhile, the prolonged impasse over wells tied up a $4.5 billion capital budget for construction projects and associated jobs they might brag about all year.
Hirst got crushed.
Back-to-back votes last week ended the standoff created by the state Supreme Court’s Hirst ruling against Whatcom County. Senate Bill 6091 received support in both chambers and passed by comfortable margins, 35-14 in the Senate and 66-30 in the House.
At its essence, Hirst found that the county was not planning for growth in areas with adequate water supply, as required under the state Growth Management Act. The county didn’t even try—they were relying upon rules established by the state Dept. of Ecology. That was improper, justices found:
“The GMA places an independent responsibility to ensure water availability on counties, not on Ecology,” justices argued. “To the extent that there is a conflict between the GMA and the Nooksack Rule, the later-enacted GMA controls.”
This finding threw every county with a substantial rural population that plans under GMA into a tizzy—Ecology writes the rules, but is not the authority on their enforcement. The onus was placed on individual landowners to prove their new wells do not draw from impaired streams.
A “fix” was demanded of the state Legislature, in effect clarifying the role Ecology might play and drawing in the state as a partner in the determining of adequate supply.
Under the new bill, landowners in rural areas will be able to drill household wells while planners in local Water Resource Inventory Areas (WRIA) create new long-term water usage plans. The plans must include measures to offset potential impacts to rivers from such wells. Local governments can rely on the state Department of Ecology’s water rules for determining impacts on water availability. The bill limits water withdrawals from new wells, depending on the area, and authorizes $300 million over the next 15 years for projects to improve streamflows and restore watersheds. Jurisdictions like Skagit and Clallam counties, already at work on their own water resource plans (as Whatcom should’ve been), are exempted from the bill.
“While far from perfect, this bill helps protect water resources while providing water for families in rural Washington,” Gov. Jay Insee noted when he signed the new legislation. “Despite this positive step, pressures on stream flows and salmon will continue to mount in the face of climate change and growing demand for water.”
Whatcom County Executive Jack Louws expressed confidence that the legislation would help lift a ban on new building permits in basins with impaired streamflows.
“Overall, this legislation creates certainty for property owners to move forward using exempt wells for building permits in rural areas,” Louws said in a statement. “However, the bill also prescribes a challenging planning process, including a very short timeline to reach local consensus on an updated plan for long-term watershed projects necessary to improve instream flows and enhance salmon habitat.”
“Many basins, both in Western and Eastern Washington, are experiencing declining well-water levels, and wells are producing less water or going dry. Concurrently, instream flows are frequently not being met, which adversely affects water quality and salmon habitat—an issue that will only be exacerbated by the negative impacts of climate change on water supplies,” noted Chris Wierzbicki, executive director for Futurewise, an advocacy group for responsible planning. “The impacts of SB 6091 will be felt across the state, as only 15 basins will be subject to new well-drilling rules and mitigation requirements—leaving over half of the state without protections for instream flows, and continuing the over-appropriation of water.”
“Although Republicans and some Democrats in the Legislature cobbled together a truly terrible bill, it does provide $300 million for water funding that would not otherwise have been available,” admitted Jean Melious, a local land-use attorney who delivered arguments to the Supreme Court in support of Hirst. “I hope that the tribes and environmental community will be able to keep Ecology’s feet to the fire, to make sure that real benefits result from the funding.
“What’s bad about the bill? It harms rivers and all of their public values, including habitat for fish. It specifically allows further impairment of instream flows across the state, including Whatcom County,” Melious explained. “In return, the bill sets up yet another unwieldy local watershed planning process. If no local plan is adopted by 2019, Ecology is supposed to take action. By that time, there will be more damage to streams, more people to serve, more conflicts over competing water use, and increasing climate change effects on low summer river flows.”
The issues have not gotten easier since the collapse of the last watershed planning process, Melious noted. “So, instream flows will be impaired tomorrow, with no certainty that mitigation and watershed restoration will ever take place in the future.
“It’s a shockingly bad law,” Melious commented. “It’s harmful to water resources, poorly thought through and poorly drafted. It’s a blow to many interests that have supported the governor and the Democrats through the years. If this is a harbinger of how the Legislature and governor will address difficult, serious environmental issues during an era of increasing climate change, there is good reason to be very concerned.”