Hirst fix: What about Skagit?

Along its 150-mile course the Skagit River crosses boundaries political and natural, as its journey carries water from British Columbia to Washington state, cutting through the high, dry air of the Cascade Mountains before settling in the low wetness of Puget Sound.

The Skagit Basin is the third-largest watershed on the West Coast, and the largest river that flows into Puget Sound.

Yet many of Skagit’s resident landowners are unable to acquire water for their homes, which are not served by public water systems.

Nestled between the banks of the river and Mount Baker’s formidable shadow is Forest Park Estates, a planned neighborhood development. A sign at the entrance marks 10 lots out of 29 as sold, but a quick meander down the road reveals a flat, overgrown mass of weeds encircling the development’s only home.

The home belongs to JoAnn Walker. In a letter published by the Citizens’ Alliance for Property Rights, Walker said she and her husband bought two lots in 2012, and started building on the property in 2013.

They were unaware until the end of 2013 that water was unavailable for development, meaning they could not draw any water from a well.

The Walkers had moved to the area to start a new life in Skagit County, and were suddenly left without career opportunities and with property quickly depreciating in value.

Walker wrote that she and her husband fought for their water rights, with her husband testifying before state lawmakers in Olympia to no avail. Walker said her husband died three months after testifying in Olympia.

With one home and another empty lot in Forest Park Estates, Walker stated her land is essentially “worthless,” and that her empty lot would usually be worth $75,000 but was valued by Skagit County at $13,000.

Walker’s son said she has moved to the Washington coast and hopes to sell her Skagit County residence.

Hopes dashed

The past two legislative sessions brought Skagit County hope for relief, but that hope went unfulfilled.

In 2016, the state Supreme Court ruled in Whatcom County v. Hirst that counties could not rely on the state Department of Ecology to determine whether water is available for a given development and must make the decision for themselves.

The ruling, known as the “Hirst Decision,” essentially froze development projects across the state, since proving availability of water would require expensive hydrology studies.

The Hirst decision was a contentious issue between state Republicans and Democrats during the 2017 legislative session. Republicans refused to support an unrelated capital budget proposal unless Democrats could bring a Hirst “fix” to the table.

Water was bound to dominate the 2018 legislative session proceedings, but the issue was resolved just ten days into the session on Jan. 18, with a bill restoring water access to landowners in Washington. Only Skagit County was explicitly left out of the new law, which leaves resident landowners stuck in the same place they’ve been for nearly two decades.

House Minority Leader Dan Kristiansen, R-Snohomish, said in a Feb. 8 press release that Skagit County’s exemption came at the request of “negotiators, supported by the tribes.”

Kristiansen, a leader in the “Hirst fix” discussions, represents a part of Skagit County impacted by the water situation, and called the county’s exclusion “complete politics.”

He said that his support for the Hirst bill was due to his role as a leader within his party and chamber.

“I knew 100 people were going to die, and I had a chance to save 95 of them,” said Kristiansen, using a metaphor to explain his predicament. “Here’s my problem: The five I couldn’t save were in my own district, in Skagit.”

Another potential solution for Skagit County came in the form of House Bill 2937, sponsored by Rep. David Taylor, R-Moxee, and a bipartisan group of representatives.

Taylor’s bill would have rolled Skagit County water laws back to a 1996 agreement that allowed rural landowners the ability to access water through their own wells.

HB 2937 never made it to committee for a public hearing, which Kristiansen said was due to Democratic control in the House.

But Rep. Brian Blake, D-Aberdeen, who chairs the House Committee on Agriculture and Natural Resources and is a sponsor on the bill, said the measure to benefit Skagit was introduced too late in session for public hearing.

Decades of struggle

Skagit County’s fight for water was raging long before the Hirst Decision.

In 2001, the Department of Ecology established the Skagit County Instream Flow Rule, designed to protect the basin from withdrawals that might hinder water levels in streams and the river. The new rules essentially brought a halt to development in Skagit County, since the use of nearly any well would violate the rule.

Noticeably absent from the 2001 rule was a clause that would allow “exempt wells” to be drilled for single homes spaced too far apart for public water systems to reach. An exempt well is one that does not require a permit.

Such a clause was in the original version of the instream flow rules agreed upon in 1996, but had vanished from the rules published in 2001.

Ecology in 2006 added an amendment for Skagit County “creating reservations of a limited amount of water for specific future uses that are not subject to the existing instream flow rules.” The amendment would have provided water to landowners, and Ecology determined in their analysis that “the probable benefit of the rule amendment is greater than the probable cost.”

But the Swinomish Indian Tribal Community challenged Ecology in court, arguing that the state agency had acted beyond its authority. Thurston County Superior Court ruled in favor of the department in Swinomish v. Ecology, only for the state Supreme Court to overturn that court ruling in 2013, siding with the Swinomish.

Kristiansen said the Supreme Court’s decision “locked up” 800 parcels of land and caused property values in Skagit County to drop by $22 million.

Local conflict

One of the better-documented resident struggles has been that of Richard and Marnie Fox, who in 2014 were denied a building permit for land they purchased and built a well on in 2000. The Foxes took the issue to court in an attempt to get the county to either issue a permit or explain why the permit had been refused.

A trial court allowed Ecology and the Swinomish to involve themselves in the case, and the state Court of Appeals eventually ruled against the Foxes, arguing that they had no “legally available” water, and that a permit-exempt well would violate instream flow rules.

While the Foxes hoped the case would go to the state Supreme Court, Richard Fox said the Hirst decision ended any chance of that happening.

The Foxes both pointed to the Swinomish as the primary barrier to development in Skagit County, and said the tribe’s political spending gives Swinomish a powerful voice.

According to data from the Public Disclosure Commission, the Swinomish Tribe has spent nearly $650,000 in combined contributions to political committees and candidates since 2006. Contributions come from the tribal community itself, as well as the Swinomish Casino & Lodge. PDC data shows 31 tribes making political contributions in that time frame, with only the Puyallup, Muckleshoot and Tulalip spending more than the Swinomish on political donations.

“The tribe is the main instigator here, but you have a lot of followers: the Legislature, the governor, and the judicial section,” Richard Fox said. “How can money outvote us?”

Zachary Barborinas owned property on the south side of the Skagit Basin in Snohomish County. He said his lot was part of a 40-acre development that received approvals to drill wells, but not to use them. Barborinas went on to say that Ecology wouldn’t issue mitigated water right permits, and that he thinks the agency was afraid of a Swinomish lawsuit.

It was eventually determined that the development was drawing more than half of its water from the Stillaguamish River watershed, so lot owners were eventually allowed to use their wells.

By then, Barborinas had sold his lot, frustrated at the legal and political complications. He went on to co-found the Just Water Alliance, an organization of farmers, landowners and residents of Skagit County determined to change water policy in the area.

In 2016 Swinomish asked the federal Bureau Of Indian affairs to approve an amendment to its Swinomish tribal constitution. Skagit County opposed the amendment, claiming it would have extended the reservation boundaries. Skagit County called the process “annexing” and sent a letter to affected residents on Fidalgo Island, warning that their property could become part of the reservation.

Swinomish responded in a press release and said the county had not consulted with the tribe before sending its letter to residents, and that the information was “outdated” and of “limited understanding.”

In any case, Skagit County attorney Will Honea sent a letter to the federal agency asking that it deny approval of the amendment. In its objections, the county referenced the clash over water rights as context for the relationship between the county and the tribe.

Honea wrote that under Tribal Chairman Brian Cladoosby’s leadership, the Swinomish have, “since the mid-90s, pursued a broad-ranging and programmatic effort to assert direct control over the Skagit River ecosystem at the expense of its democratically-elected governments, asserting rights over taxation, land use, water rights and a broad range of issues on a constant and ongoing basis.”

Swinomish tribal leaders did not respond to repeated emails and phone messages seeking comment on Skagit County’s exemption from the Hirst “fix.” Swinomish Environmental Policy Director Larry Wasserman said they do not discuss “private conversations with legislators.”

Science and politics

According to the Environmental Protection Agency, one in five U.S. homes uses an onsite septic system to treat wastewater, the same system that would presumably be used in many of the rural homes in Skagit County not serviced by a public water system.

The EPA also claims that septic systems provide benefits to public health, the environment and the economy. In contrast to the argument that rural development would negatively impact instream flows, the EPA’s website reads that “wastewater treatment removes pollution from surface water, recharges groundwater, and replenishes aquifers.”

Barborinas said that around 5,700 landowners were affected by instream flow rules, and if they had been able to build homes and use 350 gallons per day with a 50 percent septic recharge, their combined water usage would have been around 1 million gallons each day.

Barborinas said this impact is a very generous estimation, and even then would use just over a thousandth of a foot of the Skagit River, an impact less severe than a boat knocking waves upon the shore.

“We’re trying to bring a rational solution to an irrational problem,” Barborinas said. “It’s creating a tremendous amount of animosity in the community.”

The recently-passed Hirst bill allows for 950 or 3,000 gallons of domestic water use per day, depending on which watershed a given well draws from. Kristin Johnson-Waggoner, water resources communications manager for Ecology, said a household of four uses an estimated 60 gallons of water per capita per day.

“Nobody cares about anything logical,” Richard Fox said. “This isn’t about water, it’s about politics.

No relief in sight

Mike Newman, a real estate agent in Skagit County, said that the statewide nature of the Hirst decision gave Skagit residents another chance at water access, but that the county may have run out of opportunities now that the rest of the state has been saved,

“We’ve tried common sense, we’ve tried state courts, none of it’s worked,” Newman said. “Maybe federal court will be next.”

With the Hirst “fix” passing by a considerable margin in both chambers, members of both parties championed the bipartisan nature of the new bill and the relief it would bring to Washington landowners. When the legislation passed in January, it did so by a 35-14 vote in the Senate.

Sen. Barbara Bailey, R-Oak Harbor, cut through the celebratory noise and asked a simple question on the Senate floor: “What about Skagit?”

The Senator, whose district covers southwestern Skagit County, said the bill would be good for the future of Washington state, but that she could not reconcile the harm that would be brought to her constituents, who were provided no saving grace.

“I wish there had been something done for Skagit so I could vote yes, because the rest of the work on this bill is good,” Bailey said. “You’ve got friends and neighbors that this bill does not help.”