Hirst “Fix” Wrong Move
by Lorraine Loomis
In a hasty move to “fix” the Hirst ruling, the State Legislature and Gov. Jay Inslee are writing a bad check on our limited water supply at the cost of salmon, future generations and holders of senior water rights. They’ve passed legislation that will continue to allow new wells almost everywhere without having to first mitigate for their impacts.
The State Supreme Court’s Whatcom County v. Hirst ruling in 2016 clarified that the Growth Management Act and more than 100 years of state water law required counties to ensure that adequate water is legally and physically available before allowing development to occur. But apparently, it’s too much to ask development interests to look at their impacts before they drill.
Developers lobbied hard for the ruling to be overturned, claiming that it stifled rural development. Republican legislators even held the state’s capital budget hostage for more than a year to force a repeal.
The Hirst ruling should have ended the state’s decades-long pattern of allowing thousands of rural property owners to sink wells that can withdraw up to 5,000 gallons of water each day with no permit, no metering and no review of the potential impact on stream flows, senior water rights and other landowners. Because ground water and surface waters are connected, wells withdrawing ground water affect stream flows needed by salmon.
The new law will allow domestic wells to pump water from already over-allocated watersheds in hopes that a planning process in select basins will identify mitigation and restoration to one day make up the deficit. The Department of Ecology is then supposed to follow up the planning process with rulemaking, but no one knows whether those final rules will protect, let alone enhance, stream flows and fishery resources.
In most basins there will be no planning process at all, so the only change will be that we’ve lost the protection the Hirst ruling provided.
This scattershot approach to water management creates a patchwork of regulations. While some landowners will continue to take up to 5,000 gallons per day, others will be allowed 950 or 3,000 gallons, depending on their location. The one thing they have in common is that the wells will not be metered, so we still won’t know how much water is being taken.
The legislation intends to appropriate $300 million over the next 15 years to implement the plan. We hope this money will help restore water to streams, but most of it will be used to mitigate for new development. There are no guarantees that the Legislature will follow through on future funding, and what happens when the money runs out?
We are struggling to restore declining salmon populations that depend on cold, clean water. None of us can afford this uncertainty that puts those natural resources at risk.
Lorraine Loomis is chair of the Northwest Indian Fisheries Commission, www.nwifc.org.