Will SB 5239 Be Enough of a Fix to the Hirst Decision?
5239 is most likely going to be heard in the house before the March 29 deadline to hear bills in the opposite house. Those who understand the devastating loss of property and water rights, loss of the use of their land, and extreme devaluation, often up to 90% of their value, for thousands of families of many counties are working to improve this bill. Those who do not understand this kind of loss are likewise involved. The Hirst decision has also impacted counties and the state in terms of loss of productivity and commerce in their communities along with a drop in tax revenue.
Those who understand the impact of the Hirst decision on all counties in our state strive to find a workable solution with those who do not understand and have provided unworkable solutions. There have been many straw men tossed around like candy, these straw men do not help in providing relief for people caught in this net of nonsense. Trucked water, building infrastructure to reach properties, and hydrogeologic studies provided by individual persons to county authorities are solutions that will not work. Expense and uncertainty prohibit these things. Hydrogeologic studies are good and should be done, but they should be done by Ecology so they can have the information they lack when creating determinations of water availability and how water works. Individuals cannot rely on doing their own studies, because there are no parameters set for what science and studies will be accepted. Until such parameters are in place hydrogeologic studies will only be informative to those who understand and accept science.
Other straw men have been tossed around and testified about for years, we must move past these arguments and become reality based. Such notions as water is a finite resource are simply incorrect. Water is an infinate resource and has been from the dawn of time. Think of it, if it were finite it would eventually be gone, such is not the case. The idea that 5239 would forever change traditional water rights in Washington is also pure nonsense. If anything has damaged our traditional water rights it has been Ecology determinations and rules along with Supreme Court Decisions such as Postema, Swinomish, Foster, and Hirst. The notion that a stream should have a water right alone forever changed water rights law, water rights law was built for people, not streams. The damage is done, 5239 is supposed to fix some of that damage. It is futile to go on with the long list of misconceptions that have been disproven and testified about, suffice it to say the list is long and although the straw men are incorrect, some in the legislature will continue to cling to them.
Counties have tried to find a pathway to sanity regarding those who wish to build on their properties, but nebulous concepts and solutions have stymied them. In stream flow rules created without definate science and fact based determinations and their nexus to exempt wells will forever muddy the waters. The goal for Ecology is to create mitigation. This mitigation will be as nebulous as the science that created the supposed need for mitigation. Counties and citizens will continue to grapple with water rights, people will continue to be denied their rights under inexplicable circumstances. These are the core cures needed if citizens are to continue to rely on Ecology for water determinations; reality based science that will allow for flexible decision making and proportional mitigation in those rare cases where it is needed. Mitigation must be addressed on a basin wide basis and must be for a specific purpose. Mitigation must not be on the back of individuals but rather on counties, and must include the ongoing improvements in fish habitat that should be catalogued and accounted for.
5239 does not take responsibility for determining water availability away from counties, but rather allow counties to rely on Ecology rules and reports as a basis for a county decision. This is an improvement regarding Hirst, but removing the obstacle of the Hirst decision still puts many citizens in the unenviable position of dealing with their own damaged water rights based on the mess water law had become because of Postema, Swinomish, and Foster. It is likely these families so affected will not find much in the way of relief. In other words if you are a family impacted by In Stream Flow Rules and had hoped for relief from the streams that have been given a prior water right to yours, this bill will not help you.
Unless the bill has changed a great deal and the public is not aware of these changes yet, it can be counted on that Ecology will take this as a green light to create mitigation plans and programs for 16 watersheds in 14 counties. This will be a long and costly process in which implementation at this point is not defined. That implementation should be decided upon by the legislature or it is feared this long costly process may not result in relief but rather open the door to further litigation.
Is 5239 enough of a fix? At this point not for every family that needs it. Should it be supported? If it can help enough people, yes, even though there is a mountain of issues that will not be addressed and many, many families it will not help at all. It needs to be watched and it can be hoped this bill has improved and not digressed into the abyss of the straw men. If so, it should be let go.