To most Washington state residents, exercising “water rights” means turning on our faucets and paying for water from a municipal system.
Rural residents — a significant minority in our state — choose to live beyond the reach of government water supplies. Take away or impair their individual water rights, and rural residents may find their properties uninhabitable or their values gravely diminished.
So when Republican lawmakers in Olympia “drew a line in the sand” this year about rural water rights, their cause was worth defending. The “Hirst problem” (referencing an October 2016 state Supreme Court decision) is a do-or-die issue for many rural families and businesses.
A Republican-sponsored legislative remedy, Senate Bill 5239, passed the Senate four times this year with bipartisan support. Hopes were high for House passage of a compromise version, but an agreement combined with approval of the state capital budget fell apart in the murky final hours of this year’s legislative session. A Hirst fix has yet to emerge, and the $4.2 billion capital budget is in limbo.
Rural-urban conflicts underlie this impasse. As a whole, Washington is urban, with only 16 percent rural population (applying the State Health Department criteria). But 26 counties in our state have at least 25 percent rural populations, and some are 100 percent rural. The Democratic voter base is centered in 97-percent urban King County, while the wide expanse of rural Washington leans Republican; thus the political divide over Hirst.
This crisis started in the courts. Ruling on a complex chain of lawsuits entitled Whatcom County v. Eric Hirst, et al., the state Supreme Court decided 6-3 that counties must apply more stringent criteria of groundwater and surface water analysis and protection prior to approving a single-building permit or subdivision application.
The Hirst effect
Dissenting Justice Stephens (appointed by Gov. Christine Gregoire) explained the legal overreach: “The effect … is to require individual building permit applicants to commission a hydrogeologic study to show that their very small withdrawal does not impair senior water rights, and then have the local building department evaluate the adequacy of that scientific data. The practical result … is to stop counties from granting building permits that rely on permit-exempt wells. Not only is this contrary to the clear legislative purpose of RCW 19.27.097, it potentially puts counties at odds with the Department of Ecology and imposes impossible burdens on landowners.”
The ruling may lead to government monitoring of permitted residential wells, or the need to purchase “rights” from a government-controlled bank, in either case unacceptable government intrusion. Varying county responses may create a patchwork quilt of compliance regimes.
Rep. Jim Walsh, R-Aberdeen, concluded that “the Hirst decision has basically halted new building — residential and commercial — in rural areas. … Some counties have simply stopped issuing new building permits because they are uncertain whether ‘exempt’ wells are really exempt anymore.” Banks warn of defaults and bankruptcies. Sharply lower property valuations may hit county budgets.
Interest groups supporting a Hirst status quo include native tribes and Futurewise, a Seattle nonprofit dedicated to, among other goals, “Equity-Centered Environmentalism.”
Republicans are prudent to insist that a solution for Hirst is an essential component of any agreement to pass the state’s $4.2 billion capital budget. Supported by both parties, the capital expenditure plan, which includes millions for popular projects, has the potential to bring the two sides together.
Rural Clark County has so far escaped the impacts of Hirst. Clark County (in its official statement) “continues to allow exempt wells as part of land division and plating process. In Clark County we do not have any completely closed basins at this time,” implying that the future is uncertain.
Ann Donnelly, a Vancouver businesswoman, is a former chair of the Clark County Republican Party.