Legal conflict concerning Washington’s water laws has intensified over the last four years. One of the most recent rulings, Hirst v. Whatcom County, has brought the debate over water rights to a head in our communities and our courts. The ruling brings growth in our rural communities to a halt, impedes development, decimates undeveloped rural land value, imposes excessive tax burdens on rural homeowners and denies farmers flexibility. It leaves hundreds of Washington families in hardship.
Hirst “disproportionately favored fish over the lives of Washington citizens and their access to water,” according to Madilynne Clark, Agriculture Policy Research Director with Washington Policy Center.
The state Senate passed a bill to fix Hirst, but the House failed to vote on SB 5239 before a March 29, 2017, deadline. The bill is now dead in a House committee unless voters encourage House leadership to revive it during the current session.
Washington Water Rules
Washington’s Watershed Planning Act (1997) established rules to protect existing or senior water rights, as well as groundwater that feeds our rivers and streams, referred to as instream flows. Within these rules, the state has previously been able to grant permit-exempt wells in undeveloped areas for clearly defined, small uses. The purpose of the exemptions was to prevent bureaucratic red tape from hindering development and agricultural uses in instances where the water use would be negligible.
By negligible, we’re talking about water use of less than 5,000 gallons a day for a single home or group of homes or for agricultural uses such as watering water livestock. In practice, permit-exempt well users withdraw and use significantly less than 5,000 gallons a day and account for less than 1% of Washington’s water use even during irrigation season, when water use is at its highest.
Excessive Burdens for Landowners
Then comes Hirst. In October, 2016, a state Supreme Court ruling set a precedent prohibiting the state from granting permit-exempt wells. Previously, permit exemptions could be granted based on a statement from the department of ecology that sufficient water exists. Now, counties must prove water availability for each new well by conducting hydrogeological studies which cost between $15,000 and $300,000 each. The burden of those costs passes to the resident requesting the well and several counties have halted approval of all permit-exempt wells.
This leaves hundreds of families making payments on land they can’t build on. It leaves undeveloped land worthless, but dramatically raises the value and the tax burden of existing rural homes. It increases rural housing costs, reduces tax income for our rural counties, halts growth and development in counties that need it and eliminates work for builders. It denies farmers the right to build new homes on their land or to drill a new well to water livestock.
Hirst proponents argue that the ruling protects streams for fish. We must certainly ensure healthy fish habitats, but not at the exclusion of development, not by crippling our rural communities and not by imposing impossible financial burdens on landowners. Practical and workable solutions for our state and our communities don’t favor fish over residents. Effective water policy balances the needs of fish, cities, residents, farmers and other industry.