OLYMPIA — The end of the regular session left several state-wide issues unresolved, including the controversial Supreme Court decision commonly known as Hirst.
Several bills were sponsored in both chambers during the regular session, but died in committee due to disagreements over senior water rights. Leaders in the Senate plan on resurrecting a bill by Senator Judy Warnick, R-Moses Lake, in the coming weeks.
Warnick’s bill, SB 5239, aimed to restore policy surrounding permit exempt wells to its previous status. Democrats in the House Agriculture and Natural Resources Committee, where the bill died in the regular session, Rep. Derek Stanford, D-Bothell, and Rep. Larry Springer, D-Kirkland, are concerned the bill does not properly address mitigation and the solution could end up back in the courts.
What is commonly known as Hirst is a court case in Whatcom County which changed the way the Department of Ecology and county governments issue building permits. Counties can no longer rely on the Department of Ecology’s in stream flow rules and many local governments must conduct their own hydrological studies or have the landowners conduct studies before any wells can be drilled.
Stanford said he had met with several tribes and believes if Warnick’s bill is passed, tribes can and would sue to protect their senior water rights, which were issued by the federal government.
“I think that approach would not stand up to a legal challenge and that’s one of the constraints we’re dealing with here,” Stanford said. “Whatever solution we come up with has to past muster for protecting those treaty rights.”
Sen. Jim Honeyford, R-Sunnyside, the vice chair of the Ways and Means Committee and a co-sponsor on the bill, said he did not see an amendment as necessary to finding a solution to the issue.
“Anybody can sue over anything they want to,” Honeyford said. “Whether they can win is something else.”
Honeyford is in charge of the capital budget for the Senate and said after the lead budget negotiators create an education package and operating budget, he intends to stall the last piece, the capital budget, until the House votes on a solution to Hirst.
“I’m just saying, before we can negotiate a capital budget,” Honeyford said. “We need a Hirst fix.”
In an interview on Tuesday, Warnick, who is also involved in the capital budget, said she would like to pass her bill through the Senate unamended and would prefer to keep policy issues, such as Hirst, separate from any budget negotiations.
“I would like to see those two kept separate,” Warnick said. “But if this is what it takes to get the Hirst bill through, I’ll support the chairman and the leadership.”
Stanford and Springer both sponsored Hirst bills that died in committee as well as several amendments to Warnick’s bill. Stanford said both chambers are interested in solving the Hirst issue by the end of session, they just are still far apart on strategies to do so.
“I think there is some agreement on some of the basic goals,” Stanford said. “We just need to be able to talk about how we’ll get there. I spoke with Senator Warnick, I don’t want to direct this at her, leaders in the Senate Republican Caucus have made it clear that they were not willing to negotiate on the Hirst solution, that they wanted her bill to be passed, nothing more, nothing less.”
For the House Democrats, the issue they don’t plan on compromising on is mitigation. Springer and Stanford said they were currently discussing the type of mitigation that would be feasible state-wide, but agree that when water is removed, it must be mitigated by a monetary payment or physically replacing the water.
“I don’t think we’ll be able to come to an agreement that does not include some required mitigation by people that are going to be putting in exempt wells,” Springer said. “The real question is what kind of mitigation is acceptable and who pays for it.”
Springer said he hopes to schedule meetings next week, but a solution for Hirst would probably have to wait until the end of session because the legislature’s first priorities, education and the operating budget, are still far from completion.
They said they saw Warnick’s bill as the best possible solution and with some amendments and negotiation, would support it and move it out of the House.
“Now that we’re in special session,” Stanford said. “I think it’s clear that it’s time that we come to the table and work this out.”