Water rights: The other court decision affecting us all

There is another recent state Supreme Court ruling that has not garnered as much attention nor as many headlines as the education funding McCleary decision. Yet this other court action could have enormous impacts on all Washington citizens. It's called the “Hirst decision.”

In October of last year, the court ruled that in order for counties to comply with the Growth Management Act (GMA) they have an independent responsibility to ensure water availability for land use decisions, instead of the Department of Ecology (DOE).

In essence, this means all counties must ensure, independently of the state, that water is physically and legally available before issuing building permits in certain areas.

Having this new legal responsibility thrust upon them caused immediate angst for county governments around the state. Many counties don't have the resources to hire legal and on-site hydrological analysis for every proposed building permit within their jurisdictions.

In some cases, counties have either shut down rural development altogether or have taken steps to pass this responsibility on to the landowners who now must prove that each new household well won't siphon too much water from streams and rivers in order to protect fish.

The court's decision effectively eliminates the category of permit-exempt wells, a staple of rural development for decades. The ruling makes it much harder, if not impossible, for landowners to dig wells. And, without water, there is no development.

As a result, lawmakers are being inundated with calls, letters and e-mails from concerned, frustrated and angry landowners. Many of these concerned citizens have invested their life savings to build a home, only to have everything put on indefinite hold.

Families who were playing by the rules when they bought land are now having those rules changed midstream. This uncertainty for landowners could cause a decrease in property value and have a severe rippling effect throughout our economy.

In fact, a coalition of major economic groups in our state, including the Washington State Association of Counties, Association of Washington Business, Community Bankers of Washington, Washington Realtors, Washington Farm Bureau and the Building Industry of Washington, issued a brief to the Legislature. In it, they stated:

“The impacts of this decision will be devastating to rural landowners and counties throughout Washington state, many of which have adopted or are considering residential building permit moratoria solely because of the Supreme Court's decision. The economic losses to rural landowners could easily run into the hundreds of millions of dollars.”

The consensus is that the Hirst ruling could very well grind all rural development to a halt and cripple our economies for decades to come. That's not hyperbole – it's fact.

What's being done in Olympia to rectify the state Supreme Court's overreach?

Nearly a dozen bills have been introduced. Many of these bill have come through the House Agriculture and Natural Resources Committee where I serve as a past ranking member.

Several of these bills take different approaches to get to the same conclusion – reversing the court's decision entirely. But certain tribes, special interest groups and environmentalists oppose this approach.

Legislation has also been proposed to set up a system to work with the counties to find ways to meet the requirements, such as creating a “water bank” where people who need water obtain it from those who already have water rights.

At this stage, it's still too early to tell exactly how this will play out. There are a lot of moving pieces, interested parties and political games being played.

What I do know is that the Legislature cannot ignore it. The lives and futures of many of our citizens are at risk, and our state's rural economies are in jeopardy.

(Rep. Bruce Chandler, R-Sunnyside, is the ranking Republican on the House Appropriations Committee and a member of the House Agriculture and Natural Resources Committee.)

State Representative Bruce Chandler, 15th Legislative District
427B Legislative Building | P.O. Box 40600 | Olympia, WA 98504-0600
(360) 339-5405 | Toll-free: (800) 562-6000