Water Rights Where Do We Stand with Hirst?


The mainstream media feel the issues are education, taxation, climate change, and firearms control. But most Rural Washington Citizens think the priority fight and issue is convincing the legislature to overturn the “Hirst Decision”, aka, the Supreme Court decision that turned traditional water rights upside down and shattered the dreams of thousands of rural landowners, making using water unavailable to them and rendering their properties valueless.

CAPR has been standing firm in our discussions with legislators and concerned individuals when discussing Hirst, and what is needed to resolve the takings and problems this decision has caused. It is important the courts and the legislature acknowledge The Doctrine of Separation of Powers must be adhered to, it is the legislature that is to create law, not the courts! Exempt wells are exempt! There is a reason for this, the use of water from exempt wells in Washington State is so insignificant to the overall use of water in the state as to have no impact. Water Banking is NOT a free market; a free market is a system in which the prices for goods and services are determined by the open market and consumers, in which the laws and forces of supply and demand are free from any intervention by a government, price-setting monopoly, or other authority.

The Legislature has the power to overturn Hirst, and it should, barring that solution, these ten bills are those which have been generated this session. They propose solutions to Ecology’s careless and inept rulemaking, and the Court’s abuse of power which has resulted in legislating from the bench. Again, CAPR stands firmly on the side of correcting not only the problems caused by the decision, but also in urging the correction of what has led to such a crisis in governance; influence by an environmental cartel which habitually seeks to control the citizens and government of Washington through never-ending litigation and the threat thereof, coupled with the degradation of the lines of the Doctrine of the Separation of Powers, and agency ineptitude and over-reach functioning absent legislative oversight.

CAPR DOES NOT SUPPORT bills which seek to promote water mitigation banks, trust water rights, or mitigation such as trucked water, cisterns, and other such ideas which do not provide functionally viable solutions. CAPR opposes mitigation certificates to provide water to mitigate for proposed water withdrawals. Bills which do not consider the intended or unintended negative consequences of setting in place mitigation or normalizing such mitigation are potentially harmful to all and should be avoided.

CAPR DOES SUPPORT bills which recognize the importance of traditional water law in Washington State. We are fortunate in our state to have legislators who have a firm grasp on reality and a comprehensive understanding of Washington State Law along with its constitutional underpinnings. Bills which prioritize and respect water and property rights must be supported! Call and let the legislature know your priorities in passing or rejecting these bills! Legislative Hotline 800 562 6000!!!

The Very Best Water Rights Bill

HB 1382 Establishing a rebuttable presumption that permit-exempt groundwater withdrawals do not impair instream flows or base flows. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/House%20Bills/1382.pdf

The Best Water Bills

HB 1348 Concerning the priority in the state water code assigned to various beneficial uses. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/House%20Bills/1348.pdf  

HB 1349 Declaring any minimal cumulative impacts of permit-exempt groundwater wells on water levels to be overwhelmingly offset by state investments in fish habitat improvement projects. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/House%20Bills/1349.pdf

HB 1459 Considering the full hydrologic cycle in the review and approval process of new water uses. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/House%20Bills/1459.pdf

SB 5010 Promoting water conservation by protecting certain water rights from relinquishment. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Bills/5010.pdf

Prize for Worst Water Bill

SB 5024 Concerning groundwater supply availability in areas with ground and surface water interaction, creating a permit exempt well withdrawal mitigation committee. http://app.leg.wa.gov/billsummary?BillNumber=5024&Year=2017

Prize for Overly Complicated Water Bill, that should none the less be helpful.

SB 5269 Processing applications for Columbia river water right permits to clarify legislative intent to ensure that the rules can be implemented as written. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Bills/5269.pdf

Prize for Shortest Bill that clarifies yet allows for mitigation.

County operated water banks. SB 5002 Requiring certain water banks to replace leased water rights provided for mitigation with water rights that will be permanently available. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Bills/5002.pdf

Prize for substitute bill differing significantly from the original bill.

SSB 5239 Ensuring that water is available to support development. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Bills/5239-S.pdf

A Bill that Should Help in Relinquishment of water rights but still promotes water banking.

HB 1460 Redesigning the transfer of water rights, including the statutory process of relinquishment. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/House%20Bills/1460.pdf

February 17, 2017