Dear Friends and Neighbors,
After the longest legislative session in state history, 193 days, there still remains some unfinished business – passing a comprehensive, long-term Hirst fix.
For those of you not familiar with Hirst, you will be soon if a solution is not reached in short order. Hirst refers to the flawed state Supreme Court decision from last October in which the court ruled that in order for counties to comply with the Growth Management Act, they have the responsibility to ensure water availability for land-use decisions, instead of relying on the Department of Ecology (DOE).
To say this is problematic and concerning is an understatement. In fact, Hirst is the single largest property rights issue I have faced since being elected to the Legislature. Many do not realize the critical nature of this ruling. It will effect property values, curb construction and development – exacerbating the affordable housing crisis that is hitting every corner of our state, and stretch our local government resources.
Counties don't have the resources to pay for the necessary legal and on-site hydrogeological analysis that would be required for each and every building permit within their jurisdictions, nor do they want the responsibility of this unfunded mandate.
The court's decision also states residential permit-exempt wells are no longer exempt, making it next to impossible for landowners to dig wells on their private property. It should be pointed out that the permit-exempt wells account for only about 1 percent of statewide water usage. For decades, the tradition in Washington has been that residential wells (generally defined as ones that draw less than 5,000 gallons of water a day) do not need a permit. If you own land and want to build a home on it, you could drill a well without asking permission of the government. Not now.
The ramifications of this ruling are substantial. When you have the DOE telling you how bad this could be, there is reason to worry. The department actually testified before the House Agriculture and Natural Resources Committee during the legislative session, calling the Hirst decision “an…enormous hardship for families that looks like it could be getting worse in the next few years.” You can watch the public hearing here.
The Hirst decision would be devastating to our real estate market and construction industry. Real estate and construction are how we measure the strength of our local economy.
This will not only negatively impact the economy in rural communities, but urban areas will also feel the effects. Those of you familiar with our property tax system, understand this would cause a tax shift. As land is devalued in rural areas, property owners in our urban regions will end up paying more in taxes to make up the loss.
We are already seeing the effects on our banking, building and real estate industries. Washington Federal has said it will not be lending on properties in the state of Washington that have had wells drilled after Oct. 6, 2016. You can read more by clicking “Citing Hirst, lender limits real estate loans” from the Columbia Basin Herald on Aug. 8, 2017.
It was frustrating we could not get a solution passed during the legislative session. Washington state has enough water and families should be allowed to access it on their private property. With this in mind, Republicans felt a comprehensive, long-term Hirst solution was a priority when the 2017 legislative session began.
The Senate passed a measure early in the regular session, Senate Bill 5239, which would have returned us to the system the way it was prior to the court decision. The Senate ended up passing the bill four times: Once in the regular session, and again in each of the three special sessions. Unfortunately, the majority party in the House refused to allow a vote on the measure. This was very disappointing as the Senate bill was bipartisan, and I believe there would have been bipartisan support in the House if we would have voted on the bill. Rural Democrats understand the ramifications of this ruling on the communities in their legislative districts.
On July 20, we were brought back to Olympia to vote on a bipartisan striking amendment to Senate Bill 5239 that we hoped would finally give us a fix. Once again, the majority party in the House refused to bring this solution up for consideration, despite the likelihood of it passing in both chambers.
Republicans in the House and Senate have continued to negotiate in good faith. Unfortunately, as part of negotiations in the last month, the majority party in the House said they wanted tribes to be given the authority to demand that the DOE close basins. This is a relinquishment of our constitutional duties. I would not support this, nor do I see any of my colleagues in the Republican Caucus supporting it.
A final point, the court ruling passed on a 6-3 vote. Washington State Supreme Court Justice Debra L. Stephens' stated in her dissent: “The majority's decision hinges on an interpretation of RCW 19.27.097 that is unsupported by the plain language of the statute, precedent, or common sense.”
With that, I am hoping common sense will prevail. We need it to prevail. The longer we go without a Hirst solution, uncertainty will continue to grow for families, builders, lenders and local governments. The economic effects will become a stark reality – banks won't be issuing loans, counties won't issue building permits, and undeveloped property will be rendered worthless. However, we must not give in just to reach a solution in this critical property rights issue, but stand strong for what is right and in this case, is just common sense.