Funding for at least three island projects is tied up in the state capital budget legislators failed to pass last summer due to disagreements over how to deal with a state Supreme Court ruling regarding rural wells.

Millions of dollars for Vashon’s clinic, the Mukai House and Garden and island conservation projects are included in the budget, but when that money will be made available to the groups it is meant to help remains unknown. The Legislature ended its regular session in June after three special sessions and an 11th-hour passage of the state’s operating budget. The capital budget, which funds a variety of construction and repair projects — locally, bulkhead removal on Vashon’s shores, a potential new building for Neighborcare and improvements to the Mukai House — remained on the House floor. The culprit of the stalemate? A state Supreme Court decision known as the Hirst decision, which left legislators unable to agree on what to do in its wake.

Handed down last October, the ruling requires counties to decide whether there is enough water — both legally and physically — in protected rivers and streams before issuing building permits for rural permit-exempt wells. It’s a significant decision as prior to Hirst, county responsibilities regarding these types of wells entailed only confirming the presence of water and its quality.

“We never touched the rights issue. It was not something that we looked at,” Jim Chan, King County’s assistant director of permitting, said Monday.

Now, instead of checking a box indicating that the person applying for a permit-exempt well indeed does not require a water right, counties have the responsibility to map and measure aquifers and rivers and ensure that any permit-exempt well will not draw these sources down below state-mandated instream flows — specific stream flow amounts protected in a regulation. Essentially, the Hirst decision requires permit-exempt wells to be regulated by counties and subject to instream flow rates, just as all other junior water rights are.

Permit-exempt status is granted only to wells that have a usage that does not exceed 5,000 gallons per day. Chan said the county handles roughly 100 new permit-exempt wells each year. According to the Washington State Department of Ecology (DOE), between 2008 and 2014, there were an estimated 231 permit-exempt domestic wells in King County.

John Rose, a DOE hydrogeologist said these wells have long served as a way to “eliminate the burden on homeowners to get a permit.”

“That can be a long, painful process,” he said. “At Ecology, we felt that these permit-exempt wells wouldn’t make a difference (to instream flows).”

Rose explained that instream flows are set at levels that might — “I’m going to put a lot of emphasis on the ‘might,’” he said —indicate average flows, but fluctuate from season-to-season and from year-to-year.

But the Hirst decision, which saw the plaintiffs argue that permit-exempt wells could not continue to be constructed in Whatcom County when instream flow rates were already not being met, states that these wells can make a difference and the impact needs to be determined before one is constructed. In the ruling’s wake, counties throughout the state have created their own different solutions to the new regulations. Some, like Whatcom County, have issued a moratorium on all building permits requiring a well until the county meets the ruling’s requirements. Others, such as King County, have continued to issue permits as usual, but have added disclaimers warning home builders that while they have a permit, the right to draw water is not guaranteed.

It’s this new mandate for oversight that had state lawmakers deeply divided and ultimately led to the defeat of the more than $2 billion capital budget, which got pulled into the negotiations.

“They didn’t have to be tied together (Hirst and the budget). This is unusual,” Sen. Sharon Nelson (D-Maury Island) said. “The Senate Republicans tied that together and refused to take any offers. They said only their bill, which essentially would have overturned the Supreme Court, is what they would accept. And that is why we do not have a capital budget today. It’s a $2.3 billion investment that they have held hostage.”

On the Democratic side of the aisle, Nelson explained that legislators from her party believed the oversight mandated in the Hirst ruling is a much-needed addition to the state’s water law.

“We have a problem with exempt wells because you don’t know how much water you’ve got,” she said. “We want to make sure if you’re ready to build, this decision is not holding you back, but we also have to look at our water supply state-wide. The court took this action because we have problems with water and water is life.”

Across the aisle, Republican lawmakers saw Hirst as an overreach and a roadblock for those wishing to build homes in rural areas. Sen. Judy Warnick (R-Moses Lake) noted that most of her caucus is comprised of rural areas and after the Hirst ruling, she started hearing from people who were being prevented from building homes. She drafted a bill that allowed for permit-exempt wells to continue being built and created an additional permit-exempt well fee. Funds from the fee would go toward mitigating any environmental impacts on rivers and streams.

“At the end of June, we thought we had an agreement with the House … and then something fell apart,” Warnick said. “We had decided earlier to tie the passage of the capital budget to the bill because we felt we were not getting enough interest from either the governor or the House Democrats. It didn’t seem like that important of an issue to them. We needed to raise the bar to get their attention.”

For Warnick, the Hirst decision comes down to the issue of rural versus urban.

“It’s hard for those who represent urban areas to understand how important access to water is in a rural area,” she said. “In the cities, you hook up to the utilities that are there. In rural areas, the only way is to drill a well or hook up to a group well. So it’s very frustrating when the decisions are being made by people who can turn on the taps and have water.”

With the bill defeated, the budget sits defeated as well. Nelson expressed frustration over the situation and called the Republican senators’ approach to the decision “sad” before citing the fact that the budget hold-up is preventing leaky sewer pipes in Carbonado from being replaced. According to a July story in NW News Network, the century-old clay pipes in the small mining city are collapsing and decaying and a “significant chunk of the funding is wrapped up in the state’s capital construction budget,” the article indicates.

“It’s DC-style politics,” Nelson said. “Their permanent fix is to overturn the decision, which we disagree with.”

Warnick acknowledged that there are “some really good projects” being held up because of the passage of the capital budget, but Senate Republicans needed to make a point. The Department of Ecology estimates that statewide, during the irrigation season, self-supplied wells account for about 0.9 percent of the overall consumptive water use. Warnick cited this number and said permit-exempt wells have a “very small impact” on overall state water supply, but have “a huge impact for people who have property they want to build on.”

The Legislature will convene a 60-day short session in January. Looking ahead, both Nelson and Warnick said they are optimistic about reaching a solution, though when asked what would happen if the capital budget continues to go unpassed, Warnick answered simply: “That’s a good question.”

“We are committed, we want to get this done. We’re just not sure what that’s going to look like,” Warnick said Monday.