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Published on Friday, June 16, 2017

New water bill creates unfunded mandates and legal risks for cities

AWC is working this session to resolve the challenges created by the two state Supreme Court water cases known as Hirst and Foster. Those cases turned water management on its head by requiring local governments to independently assess the legal availability of water in parallel with the state (Hirst), and eliminating the opportunity for creative mitigation to offset impacts of new water rights, changes or transfers (Foster).

A new proposal from the House Democratic negotiators would be a double blow to cities. It does not help cities facing water challenges, and it introduces significant new legal risk for almost all cities – whether you have a water availability challenge or not.

Please contact your legislators now and ask them to support SB 5239, and reject HB 2226. We expect a bill to pass in the coming days, so it is critical that you contact your legislators right away.

On June 15 we sent this Action Alert to City Managers, Public Works Directors, Planning/Community Development Directors and City Attorneys. We encourage you to coordinate your response with others and act as soon as you can. The House introduced HB 2226 on June 14 and legislators have said they will pass a bill on this issue before the end of session, which we expect will wrap up on or near June 30.

The challenge imposed by the Foster case

Cities are facing significant population growth in coming years and the result of the Foster decision leaves us without the authority to craft mitigation packages alongside the State Department of Ecology so that new water rights, or even changes or transfers can be issued. The result of the Foster decision is that in all cases, the only allowable mitigation is that which replaces “water for water.” As Ecology states: “[Foster] limits our ability to approve mitigation plans that do not perfectly match the season and place of use in basins with closures or adopted instream flows that are not met. We can no longer use out-of-kind mitigation, such as habitat restoration, to offset impairment to protected rivers and streams. There are few areas in the state where in-kind, in-time, and in-place mitigation water will be available.”

The House bill establishes new requirements and potential new liability for almost all cities

The House of Representatives has failed to find consensus on an approach this session. Unfortunately, the most recent attempt from House Democratic negotiators is bad for cities. Introduced on June 14, HB 2226 does not fix the Foster issue, and creates new legal exposure for cities under the Growth Management Act (GMA) – even for cities who do not currently face challenges with water.

Cities fully planning under the GMA would be required to ensure that the level of planned growth in their comprehensive plan is “consistent with current scientific information on the availability of water within the area during the twenty-year planning period,” without clear definitions of what information would be sufficient, how consistency would be established, and whether cities could rely on information from the state.

Cities that issue building permits for residences served by private wells would be required to:

  • Ensure that comprehensive plans and development regulations match growth with available, unappropriated water supplies;
  • Confirm that senior water rights are not impaired by existing or planned growth; and
  • Ensure that ground and surface water levels are stable.

Cities do not have access to this information because the state is the manager of water rights, and language to this effect will only invite lawsuits against cities.

Senate bill fixes both Hirst and Foster

In contrast, the Senate has passed SB 5239 that restores the authority to Ecology to create mitigation packages that work for both fish and people. It allows local governments to rely on the state to manage water, retains all existing protections for senior water users to protect themselves, and all authority for the agency to protect the resource. It provides clear paths forward for rural well users as well as municipal providers to secure legal water in a way that protects the state’s resources.

Call your legislators today and ask them to pass SB 5239, a well-crafted solution that includes a Foster fix, and ask them to reject the approach in HB 2226 that adds new poorly-defined GMA requirements that will likely result in legal challenges for cities.

If you have questions please contact Carl Schroeder or Dave Catterson.