Water rights across Washington is an extremely complex area of law, and it affects all of us. So what is the fair and equitable distribution of this most precious resource?
As Washingtonians, one of our core principles is standing up for a just society, and that includes defending people’s civil rights.
We fight for the oppressed. We state firmly and unequivocally that discrimination is wrong. We push back against attempts by the majority to violate the constitutionally protected rights of the minority. This is who we are.
Legislators should keep this in mind as we work to find a permanent, bipartisan solution to the Hirst issue. Water rights is an extremely complex area of law, and it affects all of us. So what is the fair and equitable distribution of this most precious resource?
With the Hirst decision, our state’s Supreme Court ruled counties need to ensure sufficient water is available before a permit-exempt well can be drilled. The Hirst suit was brought on behalf of agricultural interests that sued over counties allowing wells to be drilled despite not knowing whether adequate water is available. Such wells threaten the livelihood of farms and violate the rights of others who already have water rights.
Here’s the problem: it’s costly for counties and homeowners to determine if sufficient water exists, so a few counties are no longer issuing permits. That means some property owners cannot build on their property now and are relying on the Legislature to find a solution.
Washington tribes are senior water-rights holders, and just as civil rights are protected by the United States Constitution, so too are Tribal sovereignty rights, safeguarded under the Supremacy Clause.
Taking something without permission is an act of theft. Taking water from a senior water-rights holder, whether from a farm or a tribe, is a breach of an agreement.
Tribal-sovereignty rights extend to water and have been protected by the United States Supreme Court in numerous decisions, including the Winters case (recognizing a tribe’s right for water for agriculture and economic development) and the Boldt case (holding that tribes have a right to half of the harvestable salmon).
Legislators should be united and unwavering in committing not to repeat the mistakes of the past and to stand up for those whose rights are being trampled on.
However, there’s an additional wrinkle to this debate. Republicans are holding our state’s $4 billion construction budget hostage over the Hirst issue. We disagree with that approach and think it’s self-defeating to stop billions of dollars in construction projects — including $1 billion to build new schools. While it is inappropriate for Republicans to link our state’s vital construction budget to such a controversial bill, it’s also wrong for Democrats to agree to a solution that doesn’t have the approval of the most senior water-rights holders in our state: the tribes.
It would be a mistake to make such a decision. Doing so betrays our core principles. There’s also the practical barrier of passing the sort of bill Senate Republicans want that seeks to overturn Hirst by legislation. The courts tend to side with the tribes on water-rights issues, and we cannot vote to continue a legacy of oppression that we know will ultimately not prevail in court. Just as voting for segregated water fountains would not stand in court, taking water away from salmon and the tribes to satisfy the need for development without mitigating the damage will not stand in court.
Let this be the time we get it right. The Hirst decision can be implemented by providing mitigation supported by senior water-rights holders. The state can even pay for it to reduce the burden on homeowners. However, the voices of sovereign nations with treaty rights to this precious natural resource, whose way of life has depended on it for generations, cannot be marginalized in this process.
In 2018, lawmakers can compromise on policies in order solve our toughest challenges, but in the process we cannot compromise on our principles.