Swinomish Indian Tribal Community v. Ecology is a major water rights decision by the Washington Supreme Court that is impacting watershed planning, water rights permitting and development in rural areas. I have been practicing water rights law in Washington State since 1990. I have witnessed how the state’s water allocation policy has been misapplied by setting minimum instream flows before allocating water for other uses according to the maximum net benefits policy, and by falsely assuming that ground water would remain available for future municipal and domestic uses. The Swinomish decision demonstrates that the state’s implementation of legislative water allocation policy is broken and needs to be fixed. Please read my article, “How Messed Up is Washington’s Water Allocation System After Swinomish Indian Tribal Community v. Ecology? How False Assumptions and Failure to Balance Water Priorities Led to a Surprise Closure of the State’s Groundwater, Over-Reliance on OCPI and the Need for Legislative Reform.” The article is also posted on my website, www.porslaw.com.
Water rights stakeholders, state and local officials, attorneys, consultants and the public are invited to comment on the Swinomish decision, my article, new developments, and potential legislative fixes. Use the reply window below or click on “comment” to post your comments, or send me an email to tompors@comcast.net. If you follow this blog, you will be notified when new developments and comments are posted.
I will periodically post new developments relating to the Swinomish case and pose questions for followers of this blog. Thank you for contributing to a discussion whose goal is to help shape water allocation policy in the state of Washington.
tomswaterblog 
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After decades of often questionable water lawmaking — combined with Washington’s ever-growing population and heightened arguments over water allocation — our state must muster the moral courage and political will to act sensibly and reasonably to its escalating rural groundwater dilemma.
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For more than 6-decades, Washington State Ground Water Association (WSGWA) has been both observant and involved in our state’s groundwater issues. WSGWA, during recent years, has become far more concerned and vocal with state legislators, county governments, the Washington State Department of Ecology (Ecology) and fellow water stakeholder interests, relative to the increasing perplexities that have developed over our state’s rural groundwater determinations and growing complications to its access.
In addressing our response to the (above) subject title, we wish to begin by concurring with a growing consensus opinion that our entrusted state agency (Ecology) who’s responsible for the overall management of waters throughout our state; has, we feel, made some problematic and short-sighted state groundwater decisions during recent decades. However, WSGWA is confident that Ecology is becoming notably concerned and resolute toward overcoming the rural groundwater dilemmas currently faced by many residents across our state. This factor was clearly borne out by Ecology’s Public Testimony provided before our state’s (previously-named) Senate Environment, Water & Energy Legislative Committee on the morning of December 7th, 2010, during that committee’s work session, which addressed “Ecology’s 2010 Report on its Water Resources Program: Functions and Funding Structure Data.” During this 45 minute briefing from Ecology’s (then) newly appointed Water Resources Program Manager, Ms. Maia Bellon, (who’s since been promoted to Agency Director of Ecology) provided some salient and revealing testimony. Some quoted Maia Bellon comments made before the aforementioned state Senate Committee consist of the following:
“We have an outdated legal system. Our state’s water code was enacted in 1917 for surface water and 1945 for groundwater. It was written to address the world in a different century. We have unstable and insufficient funding for the [state’s] water management program.”
[Our state faces] “Lack of water for economic growth, job creation and housing, streams and rivers without sufficient water year-round for fish and wildlife, and groundwater levels that are sharply declining in many areas of our state.”
“We are at a critical juncture.” “We’re facing many water challenges that threaten our quality of life now and into the future.”
“We’ve been considering the protection and conserving of water supplies by providing more flexibility with regard to our existing exempt well statute.”
“Without action, things will get worse in our opinion.” “We really believe that updating the water code is a key area of reform under active water management.” “Using mitigation strategies to offset new water uses to ensure protection of senior water rights as well as instream flows.”
“Updating our [state’s] antiquated water laws and providing a stable funding source for water resources management will help ensure water availability now and into the future for people, the economy, as well as the natural environment. In this way we can look forward to a water smart, not a water short future.”
WSGWA provides these previously quoted (2010) comments not only as a point of reference but to provide perspective that Ecology has already embraced the fact that our state faces significant rural water management and allocation difficulties. As a benchmark position, those in charge of our state’s water management must clearly acknowledge its past shortcomings. This is particularly important when considering some of its previously compiled data sources, methodologies, rule making stipulations and other agency actions taken. When combined, these past actions / policies have led to a host of costly, unnecessary and unfortunate impacts from Ecology’s attempts to manage the rural groundwater / exempt well morass that has been and is currently being witnessed throughout numerous regions of our state.
Today, it is abundantly clear that continual, high cost, time consuming, litigation; ruinous real property and economic impacts brought about by harsh rule making and moratorium procedures; and the inability to arrive at legally sensible, feasible and timely methods for supplying de minimus quantities of water for rural domestic purposes represents a grievous and costly burden for many Washington residents. The facts are glaring. Our state’s population has increased from 1.9 to more than 7 million people during the past 66 years. More than a million Washington residents depend upon domestic well water as their sole daily water source. Today’s domestic water wells are engineered to very high standards and represent an incredibly efficient means of accessing water…consuming (dwelling-wise) as little as 10% of the water initially withdrawn and returning up to 90% through a household septic system back into nearby groundwater systems. In contrast, and according to Washington’s “Partnership For Water Conservation” report on the implementation of water use efficiency, dated 11/6/12, “the average piped water leakage amount was 11.5%” according to a statewide survey conducted with municipal water suppliers. It’s important to consider here, too, the just referenced leakage amount represents a piped water inefficiency that does not apply to individual wells.
Indeed, the time has come to accept the fact that today’s domestic (exempt) wells do not represent wasteful, high water consumption culprits. And, the truth is…after years of seemingly minimized acceptance of the proven efficiency provided by the exempt well…Ecology, during recent years, has developed an increased awareness and understanding of the overall value and effectiveness of exempt wells. That, rural-based, piped water systems are expensive to build and maintain, often costing more than a million dollars per mile to install, while simultaneously generating an adverse construction and environmental footprint. Additionally, pipes have lifespans, which will ultimately require a costly, construction-messy replacement. Another important point to consider…pipes serving rural regions encourage growth density. The truth is, many rural property owners choose a lifestyle that provides more sanctuary.
Importantly, too, it should be noted that during recent years some profound statements have been made by knowledgeable and respected Ecology staff members regarding the minimal impacts of exempt well water consumption. The following 2 (bullet-point) sections contain specific statements that were made toward exempt well water consumption impacts. Each of these statements were made during Ecology-hosted meetings and are closely paraphrased from on-site WSGWA attendee meeting notes:
As quoted in an 11/5/10 Ecology news release describing (previous) Director Ted Sturdevant’s meeting the day before… “Director Sturdevant met with a variety of stakeholders on Thursday (Nov. 4, 2010 in Ecology’s Yakima Regional Offices) with a goal of tackling a number of emerging and ongoing water issues in the Yakima River Basin. Meeting with state and county officials, and later with homebuilders and realtors, Sturdevant notes the stakes are high for the basin…Specifically, Sturdevant invited county commissioners to help the state form a ‘reasoned and collaborative path forward’ for managing ground water and surface water as a single resource. And, he noted all key parties must be engaged to meet key interests and minimize the risks of courts further deciding the basin’s water future.”
During the homebuilders and realtors second meeting segment, long-tenured Ecology staff member, Robert Barwin, P.E., Environmental Engineer for the Water Resources Program expressed on behalf of Ecology … If he could simply remove all of the exempt wells and their related [de minimus] water usage amounts from our state’s overall water consumption concerns, Ecology would ultimately be far better off from overall work efficiency and cost-monitoring standpoints. That all of the exempt wells, statewide, consume less than 1% of its waters and the increased cost and attention continually being given to this small water-use amount simply isn’t worthwhile.
During WSGWA’s attendance at a jointly-hosted Ecology / Washington State Department of Health, “Domestic Water Use In Washington State — Understanding household water use and impacts,” half-day workshop that was conducted at Ecology’s Lacey Headquarters on 12/16/13; numerous points were shared during the workshop that dealt with the overall efficiencies of domestic rural water use in regions across our state. Workshop speakers consisted of an Engineer, a Hydrologist, 2 Hydrogeologists, an Environmental Planner and others. During a specific speaking segment, Dave Nazy, Senior Hydrogeologist with Ecology, closed his segment with words that closely resemble the following attendee meeting notes: “Bang for the buck!!” Ecology needs to get serious about water priorities. Go after big water abusers that far exceed water drawn from exempt wells. Ecology is spending far too much time, money and effort — including the continued dealing with lawsuits that argue over small water uses.”
During a Columbia River Policy Advisory Group (water meeting) held in the Lacey offices of the Washington Farm Bureau on 2/27/14, Ecology’s Director, Maia Bellon closed her “Discussion with Director of Ecology” speaking segment with words that closely resemble the following WSGWA attendee meeting notes: “Doesn’t the state of Washington have a major stake in supporting water resources and its methods for serving people — not just farm and agriculture? Our [state] legislature needs to deal with people’s access to water going forward.”
Moreover, during recent years, WSGWA on occasion has heard the following prophetic statement from one of our state’s well respected hydrogeologist’s… “Our state continues to chase drops of water with buckets of money.”
On 11/10/10, following the aforementioned 11/4/10 meeting at Ecology’s Yakima Regional Offices; Central Washington Home Builders Association requested that WSGWA provide their association with our perspectives obtained from this recent meeting. WSGWA responded with a 2-page summary. One on-point and quoted segment from our follow-up summary stated the following: “Ecology at this point, with its limited budget; reduced personnel employed within its water policing division; a changing political climate; Washington’s citizens screaming — no more taxation; all provide clear indication to Ecology that now’s the time to enlist capable, responsible, communicative stakeholder groups into the overall arsenal of creating better, more sensible, water laws in a state that has nearly quadrupled in population during the past 70 years.”
Indeed though, it’s been proven countless times throughout history; when enough pain and frustration has been evoked, providence prevails. Right now, our state is beginning to view just a few hints of a changing rural groundwater / exempt well future that through diligent, feasible, well-reasoned approaches, will provide for a more sensible, streamlined, far less contentious and costly rural water future. This year’s state Legislative Session began the process of hearing –new concept– legislative bills in both House and Senate (water-issues-focused) Committees that consisted of the following:
HB 2596… “Providing that sales and use taxes imposed by rural counties may be used for purchasing water rights for water banking.”
HB 2760… “Concerning best practices for water banks.”
SB 6467… “Ensuring that existing exempt water uses in the Skagit River basin are not subject to interruption.”
And, what appears to be our state’s biggest (county-based) rural groundwater success story, which originated during 2007, then morphed into an economically ruinous (partial county) moratorium brought forth by Ecology during 2009; is the tremendous effort that has subsequently been carried out through sheer diligence and persistence by the Commissioners of Kittitas County, especially since 2010. WSGWA has remained accessible and committed toward working with affected parties throughout this entire, contentious, rural water debacle for nearly 7 years. WSGWA was present during the 2/26/14 “Kittitas County Board of County Commissioners Public Hearing” when it was formally announced that a (county-wide) rural water mitigation agreement had been reached between Futurewise, the Kittitas County Conservation Coalition, RIDGE Association, Ecology, and Kittitas County. At present, this Settlement Agreement is in the early stages of implementation, which will take place over the coming months. Of course, the Kittitas County scenario (just addressed) represents a substantial rural water success and literally mirrors numerous points that have already been described within WSGWA’s formal December 2013 White Paper entitled: “The nexus between land-use planning and water resource management” … which concludes that: “In the end, all governing entities are answerable to the same power…THE PEOPLE.”
More encouraging news was recently shared by Ecology in its circulation of the Water Resources Advisory Committee (WRAC) meeting agenda for 4/21/14. Indeed, welcome news was provided when it comes to the agency’s acknowledgment of the need to improve our state’s rural water supply strategies. Ecology is requesting WRAC (comprised of wide-ranging, statewide, water stakeholder interests) input. After years of admitted frustration, Ecology makes the following statement in its WRAC meeting notes: “Developing a water management framework to ensure reliable future water supply for new consumptive uses has been the greatest challenge of Ecology’s instream flow protection program for more than a decade. We are seeking input from members of the WRAC on strategies for improving water resource management in Washington State.” WSGWA along with numerous other water stakeholder interests heartily welcome the opportunity to participate in the upcoming process for developing a broadly applicable, more easily implementable and much more sustainable rural water allocation framework across our state.
As we move toward the conclusion of our Association’s remarks, WSGWA wishes to express a very hearty thank you to (Seattle-based) water law attorney, Mr. Tom Pors, for his extensive efforts expended toward developing a feasible, idea-based, on line forum. His encouragement of comments to be shared through his water blog serves as a vehicle for many points of view on water law to be posted on a common site. Tom’s 16-page formal Position Paper entitled: “How Messed Up is Washington’s Water Allocation System After Swinomish Indian Tribal Community v. Ecology?” provides basis for serious contemplation and thorough thought stimulus for water stakeholders across our treasured state.
Sadly, though quite revealing, is the verbiage segment contained in the initial paragraph on page 5 of Tom’s Position Paper, which outlines in abbreviated form, the very core of our state’s flawed instream flow rule making. It reads as follows: “Unfortunately, the maximum net benefits policy was not employed when Ecology adopted MIF [minimum instream flow] regulations. Ecology apparently decided that there were not criteria for determining maximum net benefits, so it didn’t bother with it. Ecology’s Instream Resources Protection Program (IRPP) for Western Washington, adopted in 1979, was the framework for Ecology’s adoption of minimum flow regulations in dozens of Washington river basins in Western Washington, but it did not attempt to balance the needs for future surface or groundwater rights for other purposes before adopting minimum instream flows. In fact, Ecology interpreted the various laws relating to instream flow protection as creating a priority for instream flow protection before evaluating other potential uses of the state’s waters…”
Finally, WSGWA concurs with attorney Tom Pors’ Position Paper’s concluding thoughts… “Failure to implement state policy, mistaken reliance on the availability of groundwater, and overuse of narrow statutory exceptions is no way to allocate valuable water resources between instream flow protection and other uses. The significant benefits of legislative clarification are obvious. Scarce public financial resources and the efforts of community volunteers are better spent on planning processes that are not fodder for litigation, or lead to invalidation like the Skagit Basin amended rule in Swinomish …”
The time for sensible, feasible, unified statewide action is NOW !!
As my article notes, watershed planning may offer one of the best methodologies for determining “maximum net benefits” and even best available science, but it will not lead to effective amendments to existing instream flow rules unless the Swinomish decision is responded to by the Legislature. Clarifying OCPI authority is just one of the options for legislative correction.
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WRIA 1 has been planning under the Watershed Planning Act since 1998. This process produced a Watershed Management Plan and Detailed Implementation Plan (adopted in 2005 and 2007, respectivey). However, the inability to implement solutions under existing state water law has been a major problem, and led to efforts to negotiate a settlement between certain parties and the tribes, to be approved in federal court. After nine years, this process has produced no results and has given rise to questions about the public interest, owing to the exclusion of legitimately interested parties from the negotiations. In this area, agriculture is the largest water user, but about 75% of the usage is either unpermitted or not compliant with permits. This makes a general adjudication politically impractical and underlines the need for OCPI or other means of reserving water for out of stream uses under state law.