Is There a Legislative Cure for Hirst?
As of Saturday, February 25, 2017 12:32 PM
We remain resolved and determined to push forward bills to cure the attacks on water rights foisted upon the citizens of Washington State by an out of control environmental cartel. Although the best bills have been stalled in their progress through our legislature, we will continue the fight through this session and into future sessions to restore exempt well rights in response to the supreme court decision commonly known as the Hirst decision, which was brought before the court by Futurewise and defended in legislative testimony by CELP, Sierra Club, and various Washington State Tribes.
Alas, property rights, water rights, the rural population, and common sense are victims to a complicated set of circumstances that are the result of the legislature trusting State Ecology to create rules which would protect our infinite water, our water rights, and fish. Stakeholder influence, errors, poorly understood and applied science, and a supreme court that will legislate from the bench have created a morass which the legislature seems hard put to unravel and fix. Good bills have been stalled in committees; HB 1382, HB 1348, SHB 1459 and HB 1460 will not be considered on the floor this year.
The two bills which may offer some limitted hope are SB 5010 and Second Substitute Bill 5239, and are the only two bills scheduled for a floor vote. 5010 will exempt from relinquishment of water rights if water is used for irrigation or agriculture uses and the unused portion of the water right is not used because of conservation or efficiency purposes. 5010 is good for a portion of rural citizens and will help them, but will not be a statewide cure for all rural citizens in watersheds harmed by the Hirst decision. 5239 was generally supported by citizens and organizations who wish to see a statewide solution to Hirst for all citizens although concerns were voiced along with that support. The fiscal note presented for the bill was outlandish and would have greatly increased the coffers of Ecology with a request for funding to create mitigation rules for 16 watersheds and 14 counties. The funding sought to create mitigation and cover staff was 8.6 million dollars and requested additionally a continued support in this regard for 7 million per biennium. 3.5 million in capital costs to begin in 2021 to acquire and purchase water rights for water mitigation banking was also asked for. The legislature needs to fully inform Ecology as to legislative intent tasked to Ecology in this bill, we citizens can surely hope this is a misunderstanding, a common occurrence for Ecology, and not be asked to fund such unwanted work with a shrinking rural tax base.
CAPR has expressed hope that this bill will be a path forward to forms of mitigation that do not lead to an exaction for individual property owners considering the de minimus impact to a watershed a rural exempt well represents and the fact that it is often a contributor to better returns to groundwater than any other use. Even a so called and unproven cummulative impact would still be de minimus and would logically also only require a mitigation that would relate to nexus and proportionality, and in it self have a de minimus impact on citizens. This would be the case in almost all areas Hirst impacts, and in those few areas where more stringent mitigation would be required, the fiscal note reflects an ask that is certainly out of proportion to the needs any realistic mitigation would require. The laugable suggestion of CELP and Sierra that a simple payment of 1000 dollars satisfy mitigation is sadly missing the point, if mitigation is based on a scientific need, then money alone cannot abate a problem as it would have no direct scientific impact to a problem.
Though CAPR is opposed to mitigation schemes, we support this bill as seemingly the only hope to restore to the thousands of suffering families their property and water rights and along with those, their dreams, lost investments, and shattered hopes. Ecology has not demonstrated an impact on the environment from exempt wells, but the legislature must provide a cure to Hirst statewide for every exempt well owner. The sooner the better, as many families have suffered multiple years of unjust and unsubstantiated law as provided by Ecology.