Open Letter to the Legislature on Hirst Solutions
I am contacting you with concerns regarding the proposed legislation we heard in the House Agriculture and Natural Resources Committee on Tuesday, December 12, 2017.
There are many concerns with this bill, the first being it does not appear to be a compromise but rather a stepping up of previous demands made throughout the prior session by house democrats, Ecology, Tribes, and Governor. I am in agreement with much of what was testified as to concerns with the bill. I would like to take time to consider the ramifications of the proposal, especially concerning proposed planned updated rule-making for the more dated WRIAs. I was under the impression this kind of rule updating was supposed to happen every few years by legislative mandate, but it appears that mandate was ignored for many years. Why the sudden concern in this contentious and inequitable environment?
To date, solutions presented by Governor Inslee in concert with Ecology have been arbitrary and capricious. Each modified proposed legislation has become more so, expanding the legislative intent of the GMA and destroying long standing traditional water law, for example, RCW 90.44.050 which describes an exempt well. It is the duty of this legislature to prevent the reach of the executive branch and its agencies from creating law - that is the purview of the representative legislature alone.
Citizens throughout the state have appreciated and applauded the legislature’s protective stance of holding a capital budget until after a Hirst fix. This has apparently not conveyed the serious nature of correcting Hirst to some in government. It is suggested it would be important to have total moratorium on all land purchases by the state, including those involving partners such as the federal government and Non-Governmental Organizations, in what has been termed private/public partnerships, immediately put in place by the legislature until after the flawed Hirst Decision is duteously corrected by the legislature. Why should the state continue purchasing land when those denied water rights cannot, use, borrow on, or find a buyer who would purchase land with no water right? The state after all, is using the tax money gained from the backs of these very people when it is purchasing land.
Hirst has severely devalued properties people would otherwise put to the best and highest use. Zoning by counties in concert with Ecology, mitigation fees, environmental banking, and limited water banking solutions will leave properties without water. These properties become attractive targets to NGOs and state land planners and purchasers. There does not exist a cohesive, evenly applied set of decision making tools for Ecology and Counties. The result is long standing, traditional, and cultural water uses are damaged by water law that is applied selectively and inequitably. Each WRIA has different demands, regulations, and liberties, applied differently to citizens of the state. That must be legislatively corrected.
Because this seems to be the season of confusing terms, inventing concepts, I think it is important to revisit and apply definition to terms used in the debate. I am afraid the terms available and adequate are constantly being used interchangeably, and as Justice Stephens points out, there is a difference in legislative intent when using those words. While contemplating the use of “concepts” for Hirst legislation, I realized that the concept seems to actually be built around forcing a choice between fish life and human life. Because the premise for that is in part inclusive of the fact that salmon are an ESA listed species, it may also be wise to revisit the term “no net loss” for this species. Because Ecology seems to be in the business of expanding jurisdictional concepts, I find it appropriate to include in the term no net loss a more literal meaning, and suggest that tribal net fishing be included in that concept. This may help salmon recovery, which in turn would help in the understanding that human life is also dependent upon using water.
It is often hard to apply the standard of first in time first in right to today’s arbitrary standards. I can only imagine the impression this would leave on those who fought for fair water law. How can a stream have a water right? This would have never occurred to the pioneers, it is outlandish. How can a municipality have a senior water right to rural areas, yet use the same water as those in rural areas who cannot access that water? This is counter-intuitive, because that senior water right is constantly adding new homes and water users. How can those new users access that senior water right? Is there no limit to their right and yet a limit to the water right of a rural water right holder? How much water use can be piggybacked onto a senior water right? Certainly, not only is the use of water through an exempt well a very small portion of water use in the state, it is also true that an exempt well is limited in how much water can be used by that well owner. This is more evidence of arbitrary and capricious rule making that results in inequitable application of water law.
Citizens’ Alliance for Property Rights.