While the rest of Washington’s rural communities celebrated the Legislature’s new law on water rights, Skagit County residents waiting for water won’t be seeing relief.
Senate Bill 6091, signed into law by Gov. Jay Inslee on Jan. 19, will let rural property owners in Washington’s other 38 counties dig new wells for residential use as a variety of groups spend the next several years developing plans for governing water use.
But the new law leaves out Skagit County, saying “additional requirements” apply to water here. State legislators and the state Department of Ecology, which oversees water policy, understand this to mean the law does not apply to Skagit County.
Legislators, both Democrats and Republicans, are saying tribes in the county, specifically the Swinomish Indian Tribal Community, lobbied Democrats on the bill’s negotiating committee to have Skagit County removed from the legislation.
Several Democratic legislators were contacted for this article, but only Rep. Joe Fitzgibbon, D-Seattle, made himself available for an interview.
Swinomish Chairman Brian Cladoosby did not make himself available for an interview, and Davor Gjurasic, a lobbyist for several Skagit County tribes, did not respond to requests for comment.
Though Skagit County was left out of the new legislation, a new bill introduced Wednesday in the House is giving some legislators hope for a second chance and an opportunity to keep the conversation going.
THE NEW STATUS QUO?
A 2016 state Supreme Court ruling, commonly referred to as the Hirst decision, restricted the drilling and use of small domestic wells.
But in Skagit County, there has been a moratorium on new wells since a 2013 Supreme Court case, Swinomish Indian Tribal Community v. Department of Ecology, affirmed a 2001 instream flow rule that essentially cut off the Skagit River basin to new water rights in order to preserve stream flows.
In all but Skagit County, the new legislation — which many are calling the Hirst fix — once again allows for these wells, called permit-exempt wells, without requiring the counties to determine they won’t negatively affect nearby river basins.
Because a water source is required to secure a building permit, this will allow those in other counties who haven’t been allowed to build to develop their land, according to an Ecology fact sheet.
New well drilling will be allowed until the new rules are developed, but with new restrictions on the number of gallons that can be used per day.
The Department of Ecology will be responsible for approving these new rules, as well as managing a new $300 million investment from the Legislature over the next 15 years for use in projects for preserving and restoring stream flow.
Some basins, such as the Yakima River basin, have additional rules or requirements, but will still allow new wells to be drilled.
But in Skagit County, the water wars that existed years before the Hirst decision will continue past the Hirst fix, according to legislators who represent residents of the county.
“Everyone knows it’s not a secret down here that Skagit has had more than its fair share of difficulties trying to access water,” Sen. Barbara Bailey, R-Oak Harbor, said.
“(The Hirst fix) is great, but we still haven’t fixed the problem in a strategic part of our state. I’m not giving up on this,” Bailey said.
Rep. Dave Hayes, R-Camano Island, voted for the legislation because of its benefits to the rest of the state, but he recognized its irrelevance in Skagit County.
“It isn’t a step forward for Skagit, but it’s a huge step forward for the state,” he said. “Why should we hold up the rest of the state?”
House Minority Leader Dan Kristiansen, R-Snohomish, said Republicans knew Skagit County would be a sticking point going into negotiations for the legislation, but said he was frustrated that the county couldn’t have been worked into the bill.
“People have gone bankrupt because of this decision,” Kristiansen said. “It’s a very demoralizing situation for a lot of people. They have their life savings in (useless property).”
According to Republicans with knowledge of the negotiation process, it was clear Democrats wouldn’t let a deal that included a fix for Skagit County go through.
“Why we couldn’t get the Skagit (River) in that same deal, it just shocks me,” Kristiansen said. “We had language to fix it. Democrats refused to address this in this bill.”
A news release from Sen. Kevin Van De Wege, D-Sequim, the prime sponsor of the new legislation, states Skagit County is not affected by the legislation “at the request of tribes that are already working on water measures in that county.”
Van De Wege did not make himself available for an interview to clarify what water measures he was referring to, and neither Ecology staff nor other legislators contacted could explain what he meant.
It is unclear what degree of influence the tribes had on negotiations, but Bailey and Sen. Keith Wagoner, R-Sedro-Woolley, said they heard that lobbying from the Swinomish tribe kept the Skagit River basin off the table.
“I understand the tribe really wants to protect the river, but at the same time they’re hurting people badly,” Wagoner said.
Fitzgibbon, who was present at the negotiating table, said he felt Skagit County was outside of the scope of the new legislation. He didn’t feel it was appropriate to lump the county in with areas that haven’t had a legal challenge like Swinomish Indian Tribal Community v. Department of Ecology.
“All of the tribes would have liked to have their basin excluded,” Fitzgibbon said. “The Swinomish have more of a case because they were already successful (at the Supreme Court).”
In earlier capital budgets, the Legislature has allocated money to the Skagit basin to fund projects to mitigate impacts on streams, and Fitzgibbon said it will continue to try and find ways to address water availability in the county.
NOT GIVING UP
Skagit County may have been left high and dry with the new legislation, but several lawmakers say they aren’t giving up on finding a fix for the county.
With House Bill 2937, sponsor Rep. David Taylor, R-Moxee, and a bipartisan group of representatives are hoping to keep Skagit County on the minds of lawmakers.
“The Legislature needs to recognize ... we didn’t hold up our end of the bargain (to Skagit),” he said. “We need to keep focus on this issue.”
Taylor led his caucus on the negotiating committee that put together the new legislation and was frustrated that negotiators appeared to have no interest in a deal that included Skagit County.
Specifically, Taylor’s new bill would reinstate a 1996 memorandum of agreement between the county, the city of Anacortes, the tribes, Ecology and other relevant stakeholders in which, among other things, the county agreed to reduce — but not eliminate — permit-exempt wells.
House Bill 2937 would give Ecology until June 2019 to amend policy to be consistent with the 1996 agreement.
“But for Ecology not writing rules that deviated from the agreement, we might not even be talking about Skagit,” Taylor said, citing the department’s 2001 instream flow rule.
But he said the bill’s real intent is to draw attention to the 1996 agreement as an idea of how the Legislature could facilitate a fix in the future.
“The Legislature likes to respond to public pressure,” Taylor said. “If we can keep the focus on this ... at a minimum, the conversation will continue.”
Similarly, Fitzgibbon said he would continue to work with his caucus on a fix. He said he couldn’t yet speak about some of the Legislature’s plans, but said the Hirst fix may be used a template for a new bill dealing exclusively with Skagit County.
While he’s skeptical of the specifics of HB 2937, he said he supports the intent of keeping Skagit County on the minds of legislators.
“Referencing a 1996 MOA for that basin, it doesn’t seem to solve the water scarcity issue,” he said.
Any bill aiming to fix this problem will need to pass through committee before Feb. 6 in order for a vote to be held before the end of regular session March 8.