Impact of Hirst Decision must be addressed

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By Don C. Brunell

In Washington, the legislative stalemate over permitting new household wells and the state’s construction budget has not only delayed needed funding for public projects but triggered yet another salvo in the wider conflict over future supplies of fresh water for people, fish and farms.

At immediate risk is $4.2 billion in state funding for local water and sewer projects, school construction, mental-health facilities, colleges and universities and other construction. While there is general agreement between Democrats controlling the House and the coalition of mostly Republicans in charge of the Senate on the budget, there are substantial differences over how or whether to fix a water dispute called the “Hirst Decision.”

The stakes are too high for the legislature to ignore.

Republican Sen. Jim Honeyford of Grandview, chair of the Capital Budget Committee, told the Seattle Times last July that court decision has stopped home construction in rural areas. Holding up the capital budget is leverage to drive legislative changes.

Hirst refers to a 2016 Washington State Supreme Court decision restricting what are called “exempt wells,” which are common in rural area home construction. Before the Hirst verdict, if a new well drew less than 5,000 gallons per day for domestic use, it was exempt from water rights laws and a building permit was issued.

However, under Hirst, the court ruled that counties must protect senior water rights holders and required them to independently (of state agencies) verify that water is “physically and legally available” for those with senior water rights. That assurance would be necessary before the construction permit could be issued.

Tribes, municipalities, farmers and water-dependent industrial plants are among those with senior water rights. Tribes and environmental groups are pressuring Democrats and Gov. Jay Inslee to oppose legislative efforts to overturn the court decision. They want independent hydrological studies even though county officials claim they can’t afford them.

The Building Industry Association of Washington (BIAW) described the Hirst Decision as a major blow to residential development in Washington’s counties requiring legislative correction. The ruling effectively limits the use of new domestic wells in certain rural areas, especially in high population growth areas such as Bellingham.

While the Hirst Decision itself only directly applies to Whatcom County, BIAW believes it sets a precedent for all counties. BIAW argues those rules were not intended to regulate permit-exempt water uses.

In the aftermath of Hirst, some counties temporarily suspended rural development, while others changed the criteria for obtaining building permits, the Seattle Times reported.

BIAW just released an economic study and pegged the loss in economic activity stemming from Hirst to be $6.9 billion a year predominantly in rural areas. The builders added that $452.3 million was in lost wages and nearly 9,300 in lost jobs.

The lost property values from the court decision were estimated at $37 billion and researchers found $346 million in property taxes would be shifted to other properties in the state.

Some fear Hirst could even impact property owners with existing exempt wells since hydrologic studies could be required to prove those wells were not impeding senior water rights.

Republican Sen. Judy Warnick of Moses Lake offered legislation, which she believed would protect those with senior water rights. House Democrats countered with an 18-month implementation delay accompanied by a study.

The bottom line is the economic impacts and hardship on property owners should make it impossible for lawmakers to ignore.

We are likely to see more of these conflicts arise as our state’s population climbs. It is now 7.3 million. The families and property owners impacted by Hirst cannot be overlooked or dismissed.

Hirst sets an important precedent. Getting it right is important.

Don C. Brunell is a business analyst, writer and columnist. He retired as president of the Association of Washington Business, the state’s oldest and largest business organization, and now lives in Vancouver. He can be contacted at theBrunells@msn.com.

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