Download the full legislative memo here.

Key Findings

1. Washington state sits at a crossroads, determining the future balance between fish, cities, residences, resources, industry, and farms. Current court rulings have disproportionately favored fish over the lives of Washington citizens and their access to water.
    
2. The Hirst decision brought Washington’s water policy into conflict with the Growth Management Act. Policies designed to decrease bureaucratic red tape for de minimus (negligible) impacts on water supply in the form of permit-exempt wells are now unworkable.
    
3. On the surface, Hirst v. Whatcom County, Foster v. Ecology and City of Yelm, and Swinomish v. Ecology deal with water access in Washington state. However, these rulings are designed to stagnate growth in rural areas and impede development.
    
4. As Hirst supporters obsess over the impacts of permit-exempt wells, Washington’s entire water policy is struggling to promote effective, market-driven programs that encourage conservation while allowing access to water for Washington’s citizens.
    
5. The cumulative effect of Washington’s permit-exempt wells, during the most water intensive time of the year, amounts to less than one percent.
    
6. Kittitas County serves as a warning of what can happen to the state as a whole due to prohibitions on permit-exempt wells. A moratorium on permit-exempt wells increased home values in rural areas, decreased undeveloped land values, raised water costs, and redistributed property taxes for all residents.
    
7. Testimony regarding the Hirst decision illustrates the painful consequences of the court’s policy decision. One family recently purchased property before the decision was made. The property was destined to be the site of their future home. Instead, the Hirst decision devalued their land and prevented any such development, wasting years of the family’s savings and crippling them with debt and valueless land.
    
8. Multiple proposals to fix Hirst have been brought forward during the 2017 legislative session and Senate Bill 5239 was the most promising proposal to repair Washington’s water code without imposing unbearable costs on taxpayers. Though Senate Bill 5239 failed to clear the House Agriculture and Natural Resource Committee on March 29, 2017, hopefully it will serve as a guide for creating a workable solution for all stakeholders.

Introduction

What if Washington water policy was a nursery rhyme? In Washington state, our water law would play the role of Humpty Dumpty. During the past four years, multiple court cases have made Washington’s water law unworkable. In 2016, it experienced its “great fall” with the Hirst decision. Hopefully the state legislature in 2017 can “put it back together again.”

Some argue Washington’s new interpretation is more equitable, favoring salmon in a way that should have been accomplished decades earlier. Today, however, Washington state sits at a crossroads, determining the future balance between fish, cities, residences, resources, industry, and farms. Current court rulings have disproportionately favored fish over the lives of Washington citizens and their access to water.

Decades of legislation and case law led to the out-of-balance system in which Washington citizens now live. The October 2016 court decision, Hirst v. Whatcom County (Hirst), is pushing the 2017 Legislature to act. Proposals to “fix” Hirst are critical to Whatcom County and Washington state’s citizens. An urgent need exists to remedy this situation for thousands of Washingtonians stuck with diminished land values and no home. Not only do these effects of Hirst need to be addressed, but all taxpayers, communities (especially rural areas), and the state will be hurt by the indirect impacts of this questionable legal decision.

This Legislative Memo examines the legislative and judicial history of Washington’s water access, explains the recent October 2016 court decision, Hirst v. Whatcom County, illustrates the narrow-minded nature of Hirst, examines the consequences of prohibitions on permit-exempt wells, and analyzes proposed solutions to provide citizens with water. We focus specifically on Senate Bill 5239 (Engrossed Second Substitute Senate Bill 5239 as of March 27, 2017).