Olympia, WA -- January 19th, 2018
State lawmakers worked late on Thursday night to pass a permanent Hirst solution and today most state lawmakers were pleased to report back to their constituents that landowners will finally see relief from an October 2016 State Supreme Court decision that has halted rural development thanks to a bill just passed by the Legislature. Negotiators are calling the bill an overall success, one that finally restores some certainty to rural families. ESSB 6091 was the final version of the Hirst 'Fix' bill that alleviates the pressure landowners, counties, banks and homebuilders have been facing ever since the court ended the drilling of permit-exempt wells throughout Washington state in a water rights case known as the 'Hirst Decision'.
However Skagit County is the only county in Washington state that finds itself exempt from the new law. Yes, unbelievably and most unfortunately many Skagit County property owners still will not be able to use their wells or dig new wells. That is because the Swinomish tribe, it's attorneys and lobbing groups were able to keep language buried in the 24 page bill that says, additional requirements apply in areas within water resource inventory area 3 (lower Skagit-Samish) and 4 (Upper Skagit) regulated by chapter 173-503 WAC, as a result of Swinomish Indian Tribal Community v. Department of Ecology, 178 WN. 2d 571, 311 P. 3d 6 (2013). That language references the controversial court case where the state supreme court overturned a lower court decision regarding Skagit County property owners having access to water on their own land. So Skagitonians will see no changes regarding water and wells.
A tearful Republican 10th District Minority Leader Senator Barbara Bailey who voted No to the bill said on the senate floor, "I have watched people in my district, particularly in Skagit over the last several years fight for their livelihood. I have watched people who have built homes, have a well, and cannot turn the well on in Skagit. I have watched people lose their dream of having a retirement home. These people still do not have a solution, this bill will not help the people of Skagit. We talk about controlling water, making sure everybody has water, this bill will go along way about doing that, I think planning for the future is good, but what about Skagit ? What about the people that I have to sit and watch cry because they can't build a home because they don't get water ? " How do I go back and tell my constituents who come to me and cry about this 'physically', what do I go home and tell them ?"
Legislative District Senator Keith Wagoner said, "I rise against this legislation and also in support of my neighbor Barbara Bailey who understands how bad this is for Skagit. In general we are on a very slippery slope, the people who care about property rights and property owners will come to regret this new law. I have an 86 year old friend from the 1990's in Skagit, he and his wife followed all the rules, they permitted their wells, they put in their septic, they cleared their land, his wife has since passed away, I am afraid he will be gone before we get a fix in Skagit County that those people deserve, and that is not a unique situation. Here is the silliness of this; there is no science in this, we are down to bureaucratic arguments, the true science in this is that well water users are putting more water back into the rivers. Well users take groundwater from the deep aquifer, then it goes out to their drain field, then the water gets added to the rivers. Skagit land owners got sacrificed for expediency in the rest of the state. This is a very sad day for Skagit."
State House Representative and GOP floor leader Dan Kristiansen said, "Is this bill perfect ? No. However, it reflects a bipartisan compromise and balances the interests of urban and rural stakeholders, It's what Washingtonians should expect from a closely divided Legislature, water law is complicated and it got even more complicated as Hirst prevented many rural property owners from accessing water from exempt wells, and as you can imagine how much uncertainty it caused families, communities and local governments. This Hirst solution is about protecting property rights. It removes the obstacles created by the court and provides permanent, legal, reliable water to impacted property owners. People can utilize their land and pursue their dreams."
Of concern to many Republicans is that the new law will have 'Watershed Restoration and Enhancement Committee's' created that will be comprised of various government officials and tribal members who will be making future policies including setting fees, etc. The Democrats and tribal lobby group negotiators helped place language in the bill that says: By June 30th, 2021, the department (Dept. of Ecology) shall prepare and adopt a watershed restoration and enhancement plan for each watershed listed under subsection (2) (a) of this section, in collaboration with the watershed restoration and enhancement committee. A representative from each federally recognized Indian tribe that has reservation land within the water resource inventory area and a representative from each federally recognized Indian tribe that has a usual and accustomed harvest area within the water resource inventory area will be on the committees. 'All members' of a watershed restoration project and enhancement committee must approve the plan prior to adoption.
Besides the fact that the Washington state legislature has now divested itself from future oversight of taxpayer dollars, further concern with this legislation is that the state Department of Ecology will be setting up water meter 'pilot projects' on private property in both Clallam and Kittitas Counties; the obvious goal for the Democrats will be to eventually tax private property owners well water statewide.
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