Lawmakers’ last challenge? Water rights | The Petri Dish

  • Wednesday, November 8, 2017 9:51am
  • Opinion

Wednesday arrived with a sense of possibility that lawmakers could solve the two remaining riddles in this year’s legislating marathon.

But by the evening it appeared all but impossible they could succeed before the third special session ends at midnight Thursday. And the governor is not intending to give them any more extensions to figure them out.

The bit of optimism stemmed from Democratic and Republican lawmakers in the House and Senate reaching an agreement on a new two-year capital budget. It would spread billions of dollars around the state on school construction, affordable housing, mental health facilities, and community projects.

This took care of one puzzle. But they must still figure out the other — responding to the Supreme Court’s Hirst decision on water rights — before any votes are cast on the capital budget.

The Republican-led Senate knotted the two issues together when the session started and the Democrat-controlled House and Democratic Gov. Jay Inslee have been unable to undo the pairing since.

Wednesday afternoon House Democrats declared an impasse on the question of Hirst and in a press conference expressed disappointment Senate Republicans would not accept their final offer, a 24-month delay in any new rules regarding permitting of wells for rural homeowners.

House and Senate Republicans responded with their own news conference at which they deemed the delay as an untenable temporary fix. They insisted there is a bipartisan solution – which had buy-in from the Department of Ecology – awaiting action in the House if the majority party would allow it to be voted on. Democrats said they won’t.

In the Hirst decision, the court said counties can no longer rely on the state Department of Ecology to determine whether there’s enough water for a new well. Each county must come up with its own system for predicting the impact on water flowing to nearby streams or available to existing wells before issuing permits for new wells for rural homeowners.

Environmentalists and tribal leaders hailed the decision as a victory for protecting water resources. Owners of property in rural areas contend they cannot develop their land because they cannot get water.

Senate Republicans began the year wanting to essentially restore the process to the way it was before Hirst. Four times they’ve passed a bill to push in that direction.

Most House Democrats, meanwhile, didn’t want to do much of anything. They liked the court decision so why mess with a win. There’s not been a single vote on this issue in the House of Representatives thus far.

Serious conversations didn’t even get under way until a month ago. That’s when representatives of the majority parties and Inslee’s office held their first negotiating session. Everyone got along fine but realized the daunting challenge they faced.

Here’s a sample of what transpired up until Wednesday’s events:

Democrats proposed property owners pay mitigation fees for new wells, and that advisory panels be formed to decide how to spend the money collected. Republicans said no. They objected to charging for mitigation – literally they opposed the word “mitigation.” The GOP countered with a suggested “data” fee for much the same purpose, which had Democrats scratching their heads.

At one point Democrats offered to reinstate most of the rules in place before Hirst for 18- to 24- months while lawmakers worked everything out. Republicans wanted a solution now not a task force.

The two sides came darn close in the early morning hours of July 1. Conservative Republican Rep. David Taylor of Moxie put forth an amendment. It called for fees to be used for water infrastructure projects and improving instream flows, not mitigation. Counties could rely on “water resource management rules” adopted by the state agency in deciding whether there is enough water for a proposed development.

Senate Republicans were ready to accept it but House Democrats were not due to concerns federally recognized tribes would not have enough say in how those fees are spent.

Taylor’s language said the director of the Department of Ecology “must consult” with tribes about proposed projects. Democrats — at the urging of tribal lobbyists – said the state must obtain the tribes’ “consent” on use of the money.

He reportedly retooled the language ahead of this week’s last-ditch attempt by lawmakers to solve the Hirst riddle then pass a capital budget.

It didn’t work and time’s all but run out.

Political reporter Jerry Cornfield’s blog, The Petri Dish, is at Contact him at 360-352-8623; Twitter: @dospueblos/

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