A worker drills a well near residential development. (Photo: Washington Department of Ecology)

Senate bill would reverse court decision regarding water-well drilling

Opponents worry the bill will infringe on senior water rights and harm in-stream flow — water available in streams and rivers.

OLYMPIA — A state Senate-approved bill that would allow local governments to approve development using Department of Ecology water rules awaits action in the Democratic-controlled House of Representatives.

It passed the Republican-controlled state Senate Feb. 28 on a 28-21 vote. It is now assigned to the House Agriculture and Natural Resources Committee and awaits a public hearing.

SB 5239’s primary sponsor is Sen. Judy Warnick, R-Moses Lake, who chairs the Senate Agriculture, Water, Trade and Economic Development Committee.

The legislation comes in response to a decision of the state Supreme Court, which ruled that counties must determine what water is available before issuing building permits. SB 5239 would once again allow counties to rely on Department of Ecology rules when approving permit-exempt wells — those producing less than 5,000 gallons a day domestic use — to water livestock or for lawn care.

Opponents worry the bill will infringe on senior water rights and harm in-stream flow — water available in streams and rivers. The bill allows permits to be mitigated, or offset, in ways not requiring water replacement, such as improving stream habitats.

“Section 4 would allow out-of-kind mitigation,” said Dan Von Seggern, attorney for the Center for Environmental Law & Policy. “You can end up with a beautiful stream with a nice habitat, but no water. We want to see water put back in the stream instead.”

Supporters say permit-exempt wells do not significantly impact nearby streams and rivers because those wells account for 1 percent of water consumption. Opponents counter that the seasonal effects of permit-exempt wells are significant.

“Permit-exempt wells are typically year round, but when people are using them for irrigation it’s largely summertime use, when stream flows are low,” Von Seggern said. “Permit-exempt water use can be significant when compared to stream flow in a given basin.”

Supporters of the bill are concerned that some property owners have been left unable to build on their land following the court decision. They worry this will continue without a legislative fix.

“There won’t be any development opportunities in Eastern Washington if this doesn’t pass,” said Evan Sheffels, lobbyist for the Washington Farm Bureau. “This bill goes a long way in reversing [the impacts of the court decision].”

Emotional testimony from property owners has been heard in committee meetings. One landowner had sold his home before finding he could not receive a well permit on his new land.

If there’s anything both sides agree on, it’s that the bill would reject and reverse the court’s ruling.

“This bill refers us back to the … status quo,” Von Seggern said.

SB 5239’s key provisions

  • Says evidence of potable water for a building permit may include a water well report for a permit-exempt groundwater withdrawal that is not prohibited by Department of Ecology water resources rules.
  • Allows a local jurisdiction to rely on Ecology’s water resources rules when approving a development, to determine if there is available potable water.
  • Allows a local jurisdiction to rely on Ecology’s water resources rules in its comprehensive plan under the Growth Management Act (GMA).
  • Provides that a water right permit may be conditioned to offset impacts to fish or other aquatic resources.

(This story is part of a series of news reports from the Washington State Legislature provided through a reporting internship sponsored by the Washington Newspaper Publishers Association Foundation. Reach reporter Matt Spaw at matthewspaw@gmail.com)

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