Commentary: Lamakers can’t delay fix to water rights case

By Shannon Affholter

Despite numerous legislative efforts to find a permanent and balanced solution to address the Washington state Supreme Court’s Hirst decision, lawmakers in Olympia remain deadlocked on the issue. Unfortunately, the legislature adjourned on Thursday without reaching an agreement.

The 2016 Hirst decision has effectively halted many people from building their homes in areas that depend on well water. The ruling has created a great deal of uncertainty for counties, rural communities, builders and families across the state. As legislators leave town, the hardship on affected property owners will continue without being resolved.

While most of us live in urban areas with billions of dollars invested in water utilities, rural residents instead must rely on well water. Prior to the Hirst decision, counties and rural residents could rely on the Washington state Department of Ecology to determine whether there was adequate water available. This reliance on the Department of Ecology’s review and approval procedure provided a clear, commonsense and predictable process for permitting.

The Hirst decision does not provide clear guidance. Under the Hirst ruling, citizens that desire to build a new home on rural property have onerous restrictions that must be met prior to receiving a permit. Further, the decision doesn’t allow for solutions or limited mitigation to offset water use.

In the absence of clear guidance, many counties have imposed building moratoriums rather than taking on the costly and complicated task of analyzing the impacts on nearby water bodies. In Snohomish and King counties, building permits continue to be issued, but these counties are warning applicants they are making no warranties regarding the right to use well water based on the Hirst ruling, creating significant uncertainty for property owners.

Some lawmakers pushed for a temporary fix that would only assist those whose projects have been in the pipeline and ready to proceed, prior to the Hirst ruling, but are now unable to build. The challenge is that anything short of a permanent fix would be inadequate and would only perpetuate the extreme financial burden facing rural land owners.

Planning, land use, real estate development and homebuilding are long-term processes that require a permanent solution to achieve predictability.

A temporary fix would only have placed local government planning processes into legal uncertainty, and while possibly resulting in a few projects being completed, it would not resolve the issues facing a much larger group that would have been excluded from any short-term solution.

The failure to reach an agreement is very disappointing but should not be the last word. The Legislature must continue working to fix Hirst and find a path forward for property owners seeking to use exempt wells.

A solution is needed now to fix Hirst and remove unnecessary burdens on property owners seeking to use permit-exempt wells.

Shannon Affholter is the executive director of the Master Builders Association of King and Snohomish Counties.

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