Property rights v. “public interest”

Property rights v. “public interest”
SB 6301 sponsored by Sen. Kevin Van De Wege (D-24) would give the state Department of Ecology the authority to decide if a water rights transfer is “consistent with public interest.” Photo: freepik.com

State lawmakers have introduced SB 6301 that would allow the state Department of Ecology the authority to decide if a water rights transfer is “consistent with the public interest,” in response to recent acquisition of water rights by a Wall Street firm.

As supporters see it, the measure would prevent speculation and the consolidation of water rights by out-of-state investors, but opponents said during a Jan. 21 public hearing of the Senate Committee on Agriculture, Water, Natural Resources & Parks that giving Ecology that kind of power has enormous implications for property rights.

“A water right holder is a property right,” Rep. Jim Honeyford (R-15) told colleagues at the hearing. “Or are we going to be telling people that they can’t sell their property right?”

Under current law, a person must obtain a new water right from Ecology based on a four-part test that examines the availability of water, the benefits of the intended water use, whether it would infringe on existing water rights and whether it would be harmful to public welfare. Ecology can then issue an infrastructure permit that contains other conditions that must be met before the water rights are issued.

If passed, SB 6301 also gives Ecology the power to deny an inter-basin water rights transfer if it does not meet “public interest” based on certain criteria, including:

  • Potential benefit of alternative uses;
  • Impact to public water use;
  • Transferring water rights to another holder in the local community; and
  • Consistency with local water resource plans and comprehensive growth management plans.

“Our members have long thought this was a conversation that is overdue,” Washington State Association of Counties Policy Director Paul Jewell told the committee. He added that while “we support the conclusion (of) the inclusion of a public interest consideration like this bill does…we’re not exactly sure if these are the right considerations.”

Attorney Bill Clarke with Kittitas County cautioned that the proposal could complicated existing water laws and questioned “whether Ecology is the right entity to be evaluating local public interest-type considerations. We’re not convinced that the issue is so systemic…that we need legislation immediately. At this point, water right transfers are hard enough to do under the test we have….”

When asked by SB 6301 cosponsor Rep. Jesse Salomon (D-32) if the state should delay legislative action, Clarke replied that “it’s better to first understand what’s actually happening.”

Building Industry Association Government Affairs Director Jan Himebaugh made a similar comment. “We need to…take a deep breath before we hit something that might be a mosquito – with a sledgehammer. The way we can actually reduce the speculation of water is if Ecology starts processing water rights. That makes it far less of an investment temptation for Wall Street to come in…and transfer it out.”

No further action is scheduled for SB 6301 at this time.

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