Commentary: Rushed ‘fix’ of Hirst ruling won’t solve water woes

By Bryce Yadon

Futurewise spent the 2017 legislative session, and subsequent special sessions, working toward finding a path forward on the implementation of the Washington state Supreme Court’s Hirst decision. Unfortunately, an agreement couldn’t be reached, and as a result, schools, mental health and affordable housing will suffer due to the inappropriate linkage of this issue to the passing of the state’s capital budget.

This decision doesn’t need a “fix”; the state and counties need to move forward with implementation of a plan to address water resource planning. This isn’t a new regulation, nor is water availability a new issue. The situation stems from a lack of enforcement of current laws and the political forces that prevent regulations from keeping up with informed data. “Fixing” the Hirst decision isn’t going make more water available.

The Hirst ruling provides very clear direction to counties permitting development on exempt wells: Make sure legally and physically there is available water. This is a challenging prospect given that nearly all the water in the state is already allocated, and many rivers and streams are not meeting their instream flows. But the impacts are real, as fish and wildlife are being harmed, and the state and counties are in the perilous position of infringing upon tribal treaty rights, potentially causing further litigation down the road.

In addition to highlighting the need for solution to these issues, the Hirst decision is also basic consumer protection; people living in existing homes should not have to worry if their well is going to go dry because of development and lack of water availability. Additionally, new lots and homes should only be approved if there is physical and legal water available. New development should not infringe upon the property rights of others. These include water rights that support farmers and ranchers in an agriculture industry valued at $10.7 billion in 2015.

Despite recent rhetoric, there have not been widespread building moratoriums across Washington since the decision. Most counties are continuing to issue building permits with minimal changes to permit requirements, and some parts of Washington have been compliant with Hirst by matching available water resources with development. Kittitas County has been a leader in this area, and has instituted a mitigation program that returns water used by exempt wells back into the rivers and streams affected by development. They have shown what a successful program looks like, providing a clear, commonsense and predictable process for permitting.

Futurewise and our partners supported a temporary delay on developing a “fix” to give immediate relief to property owners who had been planning under the direction of counties prior to Hirst. While not a perfect solution, it would have provided some breathing room for the Legislature to “get it right” and not be rushed into an inadequate solution.

We strongly believe that given time and critical thinking, we can agree upon a simple solution. The elements of that solution would include fully mitigating for the impacts of exempt wells and fully funding the mitigation needed with a modest fee and capital budget funds; sequenced water for water mitigation that will provide the best outcomes as close as possible to the impact, all within the protection of tribal treaty rights.

This solution can be crafted using legislation that does not harm homeowners and farmers who are water users, does not harm instream flows protecting fish and wildlife, and does not ignore tribal treaty rights. Ignoring these issues for the benefit of new development will only result in more uncertainty as changes in our environment — and the resulting changes in availability of water resources — become more acute over time.

The Legislature needs time to seek a balanced approach while not being bullied into legislation that will cause unintended negative outcomes. We owe the people of Washington an implementation of Hirst that sets the course for stable access to water resources for present and future generations.

Bryce Yadon is the state policy director for Futurewise, which advocates for wildlife habitat, open space, farmland and working forests.