Earlier supreme court case fixed Skagit County exemption in 'Hirst Fix'

In a county bracing for anticipated future flooding due to the impact of climate change, having access to water isn’t a given.

This after state lawmakers excluded Skagit County from recent legislation allowing rural property owners to again drill wells on their land, a measure designed to provide relief for those whose property values had spiraled downward due to water access restrictions that precluded development.

Among supporters, the new law has been hailed as a statewide “fix” to the Hirst decision, a 2016 state Supreme Court ruling that had spawned some uncertainty as to whether counties could issue building permits without proof of available water.

Opponents, many from the environmental community, have viewed matters differently, saying the Hirst fix could have a negative impact on the health of streams and the fish runs they support.

Leaving Skagit County out of the mix was by most accounts a response to the landmark 2013 state Supreme Court case brought by Swinomish Tribal Community that successfully challenged upon appeal an amended Washington Department of Ecology rule allowing allocation of what some deemed “relatively modest” amounts of water from the Skagit River Basin to new development.

The court found the DOE amendment had exceeded the agency’s statutory authority.

Swinomish Tribal Community chair Brian Cladoosby praised the court ruling at the time, saying it was “a huge victory for the Swinomish people and for salmon that need adequate stream flow to survive.

“The court decision,” added Cladoosby, “vindicates the Tribe’s position and confirms that Ecology cannot make an ‘end run’ around laws that protect instream flows for fish.”

As recently as last year the state Recreation and Conservation Office released a report cautioning that Washington’s salmon population remains in decline.

The third largest watershed on the West Coast, the Skagit is the only river in the Puget Sound region that produces runs of all native salmon and trout species.

State Sen. Kevin Van De Wege, D-Sequim, architect of the Hirst Fix, told the media that Skagit County was excluded from the new law “at the request of tribes that are already working on water measures in that county.”

Water access has evolved statewide as a key issue over the past 20 years.

DOE established Skagit River Basin instream flow rules in 2001, setting the amount of water necessary for fish, wildlife, and recreation, a collaborative process Cladoosby said involved local and state entities and area tribes.

Five years later DOE created more than two dozen reservations of Skagit River Basin water for future year-round, out-of-stream uses.

Critics of that move said it could impair established minimum instream levels needed for fish, wildlife, recreation, and related pursuits during periods of low stream flows.

An initial Tribal challenge to the amended DOE rules was dismissed by a trial court, setting in motion the appeal by Swinomish to the state Supreme Court.

While alone among Washington’s 39 counties when it comes to the Hirst Fix legislation, Skagit County has plenty of company globally as concerns about water access expand.

Economists predict rising demand among competing uses in the not too distant future will make water as valuable as oil.

Water is, after all, fluid both politically and in its natural state – thus not always found when and where it’s needed.

In Skagit County, former La Conner Town Council member Bill Bruch lamented the legislation. In a newsletter issued this month as part of his role as Skagit County Republican Party chair, Burch wrote, “Unbelievably, and most unfortunately, Skagit County is the only county in Washington state completely exempt from the new law.”

Bruch says the status quo not only devalues the property of those affected but could also lead to shifting tax burdens onto other landowners in an attempt to recover lost county revenue.

Hirst Fix proponents likewise cite potential economic ripple effects made possible by developed properties.

Bruch lauded State Sen. Barbara Bailey, R-Oak Harbor, State Sen. Keith Wagoner, R-Sedro-Woolley, and State Rep. Carolyn Eslick, R-Sultan, for having opposed the legislation given its exclusion of Skagit County.