What treaty tribes are saying about the Hirst decision

Treaty tribes in western Washington are concerned about efforts in the Washington state Legislature to overturn a recent state Supreme Court decision. Last fall the court ruled in Whatcom County v. Hirst that counties need to first check that water is available before issuing building permits.

This decision simply ensures that counties understand their water resources and plan for growth accordingly. In doing so, local government can make sure that there is adequate water to support new development and also protect senior water rights holders such as farmers, cities and treaty tribes.

Some development interests believe the court ruling needs to be “fixed,” just because the Growth Management Act would require local government to plan for sustainable development of water resources.

Treaty tribes are asking the Legislature and the governor to protect water resources and encourage sustainable growth by not overturning the state Supreme Court. The Stillaguamish Tribe wrote a letter to Gov. Jay Inslee, reminding him of tribes’ role as natural resources co-managers and the necessity of water to tribal lives and culture:

We understand the difficulty that the State, counties and cities now have to ensure that water is available to its residents. However, we are not willing to allow further degradation to salmon habitat.

What (the tribes retained in treaties) was sacred to them – and central to what they retained was the right to fish, hunt and gather forever, as they have always done; and people can’t fish, hunt or gather forever if there are no fish, wildlife or plants, and if there is no more clean water.

The Muckleshoot Tribe had this to say:

Because of (the) potentially dire effects on treaty-protected and ESA-listed fisheries, the Muckleshoot Tribe opposes the current drafts of the Hirst water bills and amendments.

The Tribe wants to work with legislators and the Governor’s Office to allow for responsible development as well as minimize the impact of any bill on state instream flow rights and fisheries resources.

The Supreme Court ruling impacts the use of permit-exempt wells, which had been a way for developers to access water without first determining whether water is available.

According to the State of Our Watersheds Report by the treaty tribes in western Washington, exempt well use continues to grow. Between 2009 and 2014, more than 3,800 new wells were dug in the Puget Sound basin.

A good portion of these new wells are in watersheds that are supposed to be closed to new water withdrawals to protect senior water right holders and fish. From the Port Gamble S’Klallam Tribe chapter of the report:

Well logs within the Focus Area increased 185% from 1980 to 2014, with 164 new wells in 2011-2014 alone. Seventeen of the streams within WRIAs 15 and 17 are closed to new surface and groundwater uses at least part of the year. However, over 50 of the 164 new wells since 2011 were installed in watersheds closed to new water withdrawals. The number of new wells will likely increase with the upturn of the economy and the resulting development.

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