Hirst Fix is Complicated!
Fixing water law in Washington State is a complicated and frustrating experience for all concerned. Repeated abuse of long standing water law has been the topic of several CAPR blog posts. Most clear thinking people understand where the abuses have occurred and the agenda of those perpetuating the abuses of law and policy. Many people realize the needless suffering this has caused and will continue to cause in the absense of a legislative remedy.
Many have questions when reading bills from the 2017 legislative session regarding what is generally known as Hirst Fix Bills. First it must be recognized two schools of thought are at war with one another. One thought process is to realize the less that 1% of water used by exempt wells in the state is exceptional in its lack of impact to anything in our environment and the over-reach of agencies and litigants must be remedied by the legislature. A polarizing school of thought is to take advantage of the abuses and litigation in order to take a backdoor route to their ideal of growth management by implementing factors in law that will disallow the use of exempt wells, make such wells permitted under only such circumstances as mitigation by high user fees, zoning, and water banking. Make no mistake, this is a precurser to a continum of ever escalating demands which will be dependent on the "understanding" of ecology and other agencies at any given time. The economic impact of such a school of thought is endless for every citizen in the state, rural and urban alike as incremental fees for water uses ratchet up.
The Senate under the leadership of Senator Warnick have crafted a bill, SB 5239, http://app.leg.wa.gov/billsummary?BillNumber=5239&Year=2017 which has been amended over the session, that carries the intent of resolving two court cases that have damaged long standing water law;
the Foster v Ecology decsion, http://www.ecy.wa.gov/programs/wr/wrac/images/pdf/90386-7Opinion.pdf , which according to Ecology has the effect of disallowing the use of OCPI or over-riding consideration of public interest to justify permanent allocations of water, that there is no level of impairment to in stream flow, and out of kind mitigation such as habitat improvement projects cannot be used to mitigate impairment of in stream flow. http://www.ecy.wa.gov/programs/wr/swro/fostervecology.html
and the Whatcom County, Hirst (Eric) v: W Wash. Growth Mgmt. Hr'gs Board http://www.ecy.wa.gov/programs/WR/wrac/images/pdf/91475-3opinion.pdf which according to Ecology has the effect of the court ruling that the county failed to comply with the Growth Management Act (GMA) requirements to protect water resources. The ruling requires the county to make an independent decision about legal water availability.
When thinking of a "Hirst Fix" bill it must be realized the bill does not have the intention of resolving the many negative impacts of In Stream Flow Rules in Washington State. This bill was never intended to fix the problems a great many people face with In Stream Flow Rules that are already established and those people will not be helped by this law.
SB 5239 has been crafted to address the misguided and limiting management of resources and water caused by these cases. Analyizing the bill as it stands amended today CAPR believes the bill would do a good job of redressing the two court cases and would allow for better management in water and natural resources with greater environmental integrity. A carefully crafted bill, this would also restore the integrity of the legislature and to the recogniton that it is the legislature, the citizens' representatives that creates law, not NGOs and the Supreme Court, The intent of the separation of powers is to avoid ideological ruling. This bill does a good job of avoiding partisanship and is fact and law based.
Democrats in the House of Representatives under the leadership of Representatives Stanford and Springer (who has publically stated the days of exempt wells are over)https://www.heraldnet.com/news/dems-gop-sit-down-for-serious-talks-on-water-rights-law/ have been leading the battle in a "Hirst Fix" with their own bills which were crafted with the guidance of Governor Inslee and Ecology. There have been a few iterations but the fixes proposed by the House are related to mitigating the use of wells with money in the form of high fees directly tied to the amount of water and exempt well owner would plan to use. Water banking and zoning for water use has been promoted extensively by Ecology. The most recent bill is HB 2239 http://app.leg.wa.gov/billsummary?BillNumber=2239&Year=2017 which calls for temporary relief from Hirst until December 31, 2018. This is dependent upon established In Stream Flow Rules and upon being located in certain areas. It will allow a county to rely on a water well report until December 31, 2018, that is reliant upon the Growth Management Act and requires planning for critical areas etcetera. This also creates a legislative task force to report their doings to the legislature 30 days prior to the expiration of this bill. CAPR believes this bill is inadequate in resolving any problems related to Hirst or Foster and is not providing a directive to counties as to how they may comply with this bill should it pass. This bill would most likely cause far more problems than it would remedy and lacks any provisions to allow for environmental enhancement.