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Dear Friends and Neighbors,

A frank discussion about potential impacts of a
Washington State Supreme Court decision on water rights

There is another big state Supreme Court ruling that has not captured the front page headlines, but could have wide and deep impacts to all Washington citizens. It’s called the “Hirst decision.”

In Whatcom County vs. Hirst, Futurewise, et al. decision, the court ruled 6-3 on Oct. 6 that Whatcom County failed to comply with the Growth Management Act (GMA) requirements to protect water resources.

The court said all counties must ensure, independently of the state, that water is physically and legally available before they issue building permits in certain areas. Many counties not only don’t have the resources to hire a hydrologist at tens of thousands of dollars to test every building site, but believe it is the landowners’ responsibility, so they’ve either shut down certain rural development or have told landowners they have to prove that each new household well won’t siphon too much water from streams and rivers.

The decision effectively eliminates the category of permit-exempt wells and will make it much harder, if not impossible, for landowners to dig wells. Without water, there is no development.


How does this affect you?
Imagine you have purchased investment property for development at a future date and you’ve already poured a good chunk of your savings into the property, expecting a return upon development completion. However, due to this court ruling, the county will not allow you to dig and draw water from a well unless you can prove it will not affect surface water. Without that proof, you can’t get a building permit. Without the ability to develop, the land become useless and loses significant value. You likely won’t be able to sell your property for what you paid for it. You take a loss. In some cases, you might let it go back to the bank.

A ripple effect across the state’s economic system
Not only does this affect the landowner, there’s a ripple effect across the economic system. If the land can’t be developed and loses value, and this happens throughout the county, there will be a property tax shift toward other developed land in urban areas. So now those in the urban areas would pay higher property taxes while those with devalued land would pay less. It could also affect county services. Bankers, realtors, builders, building trades all would be affected. And that means a loss of jobs and a greater expense of being a landowner.


Everyone in Washington state could be affected
A couple of weeks ago, a reporter asked me, “This only affects people in Whatcom County, right?” WRONG! The Hirst decision could potentially impact anyone and everyone who owns a home/property or even rents. It will be costly to nearly everyone in Washington state.

A coalition of major economic groups in Washington, including the Washington State Association of Counties, Association of Washington Business, Community Bankers of Washington, Washington Realtors, Washington Farm Bureau and the Building Industry of Washington issued a brief to the Legislature stating, “The impacts of this decision will be devastating to rural landowners and counties throughout Washington state, many of which have adopted or are considering residential building permit moratoria solely because of the Supreme Court’s decision. The economic losses to rural landowners could easily run into the hundreds of millions of dollars.”


This all stems from environmentalists suing to protect in-stream flows for fish. The lawsuit was filed in 2013 by Futurewise, under the leadership of then Executive Director Hilary Franz. That’s the same Hilary Franz who was elected in November to become the state’s Public Lands Commissioner.

What is being done about it in the Legislature?
Nearly a dozen bills have been introduced. Some would reverse the decision entirely, but tribes and environmentalists oppose that approach. Competing bills on the other side of the issue would try to set up a system to work with the counties to find ways to meet the requirements, such as creating a “water bank” where people who need water obtain it from those who already have water rights. In my “Flash Alert” last week, I listed some of the water bills that were scheduled for public hearings.

It’s too early to tell just how this will play out. What I do know is that we cannot ignore it. If we do nothing, our entire state’s rural economy will tank.

Listen to my KBRC/KAPS interview
I invite you to learn more about this issue. Listen to my interview with Jeff Rex, news director at Mount Vernon’s KBRC/KAPS Radio.

What our constituents are saying so far. . .
Thank you to all who have contacted me about this issue. Here’s a sampling of what I have received:

  • “I’m for any legislation that overturns Hirst, helps rural folks, gives us our water rights back, land rights back, and retains our access to water. . .”
    KR – Darrington
  • “Instream flows are incredibly important to the well being of rivers. Keep Washington rivers protected.”
    D – Monroe
Rep. John Koster with Gov. Inslee

What can you do?
Pay attention! Get involved. Call, write or email Gov. Jay Inslee. Contact those legislators who serve on the House Agriculture and Natural Resources Committee where this issue is being debated. Let them know of your concerns and that we need a legislative fix on the Hirst decision – one that will restore the ability of rural landowners to develop their property affordably.

Participate in our 39th District telephone town hall on Feb. 21
Here’s an opportunity to tell us what you think about Hirst and other issues in the Legislature. Join me and Rep. Dan Kristiansen for a telephone town hall together on Tuesday, Feb 21, from 6 p.m. to 7 p.m. To participate in the community conversation, call (425) 616-1855. Similar to a call-in radio show, the format allows you to ask questions, participate in poll questions, or just listen in throughout the hour. We hope you can join us!

I welcome your input!
Feel free to contact my office with your questions and concerns. Thank you for allowing me the privilege to serve you!


John Koster

State Representative John Koster, 39th Legislative District
122G Legislative Building | P.O. Box 40600 | Olympia, WA 98504-0600
(360) 786-7816 | Toll-free: (800) 562-6000