The topic of water law interpretations and the intended and unintended consequences of court decisions and agency responses has been a water-cooler topic for several decades now. Some of the issues are as much philosophy as anything else. There are, however, some aspects that are clearly the purview of the underlying science. This is even acknowledged in the published findings of the courts where they assert that their findings are findings of law as it is currently written and that the consequences of the findings can only be avoided by action of the Legislature. Unfortunately, the Legislature has in most cases failed to act, so the consequences of the law still prevail.
A prime example of this is in the Washington Supreme Court’s Postema decision, where the “one-molecule” threshold for instream-flow impairment was established. Because the law does not define a threshold below which effects on surface water bodies can be ignored as de minimis, the Court had no recourse but to say that “any” effects that further diminish instream flows that are below legally proscribed limits must be considered as impairment of that body. As a logical construct of law, this makes sense. However, to the scientists who are left with the task of making such a position work in the management and development of water resources in this State, the position is untenable. Setting a threshold for denial that is virtually zero takes the science out of management of the resource. In fact, when coupled with the related finding that Ecology (or any third party with standing) can assert such impairment by the use of theory alone, every watershed with set instream flows has a de facto closure to further allocation. This closure of whole basins to further allocation was not the intent of the Legislatures that created these laws. The use of a zero threshold imposed by theory alone makes it impossible to reasonably apply a scientific approach when assessing impact potentials of each water right application or in the resolution of disputes between water right holders and those attempting to protect the rivers and streams.
It is not the role of science to define the appropriate threshold at which access to the groundwater resources is to be denied based on impairment of surface water. This is the realm of policy decision. It is obviously bad resource management to deny access to a viable groundwater source because a fraction of a percent of the withdrawal might have otherwise made it to a regulated surface water body. Yet, that is where the current law takes us. Likewise, it is clear that a situation where half of an allocation comes directly to the well from a nearby closed stream is an unacceptable impact to the stream. When the courts put us in this situation it was clear they expected the Legislature to alleviate the absurdity of walking away from major water resources because of de minimus effects at the streams. The Legislature “did not get the memo.” We have now been mired in this policy (or more appropriately lack-of-policy) for over two decades.
The regulatory agencies have made progress in some regions by allowing mitigation of the asserted impairment and has even made policy decisions allowing allocation of water using their authority under “overriding consideration of public interest” (OCPI) to recognize that some allocation provides sufficient benefit to accept minor adverse impacts. However, the Supreme Court’s 2013 Swinomish decision in the Skagit River basin weakens Ecology’s ability to employ this approach. Further, even under OCPI authority, there often tends to be a propensity for allocation findings to require expensive and sometimes unnecessary mitigation in order for the water right to be written. This makes the development of water resources in the State of Washington significantly more expensive than is necessary.
Science is intended to inform policy not to set it. We need the Legislature to set limits as to when mitigation is required and how it is to be defined and implemented. Such programs need to be guided by law rather than left to interpretation by the courts or the staff at the regulatory agencies. A level should be defined below which the time- and money-limited efforts of Ecology staff are not needed and a project can go forward by following a prescribed process to document that the planned water use meets the policy criteria. Ecology must be given clear authority to employ OCPI in a manner that makes water resource management efficient and effective and accomplishes the “highest and best use” intent of Washington water law. Appropriate guidelines should be established to facilitate applicants in defining and implementing effective mitigation programs. This is essential to the active management of Washington’s allocable water resources. These are all tasks for the Legislature that must be accomplished before the scientists of the agencies and the private sector can do their work in allocating and developing water resources to meet the needs of the citizens of the State in a responsible and effective manner.
Robinson Noble, Inc., August 11, 2014