My Public Comments on Ecology’s Report: Rural Water Supply – Permit Exempt Well Use in Washington State

These are the written comments I provided today to the Department of Ecology:

Thank you for the opportunity to comment on the Department of Ecology’s report, “Finding Rural Domestic Water Solutions While Protecting Instream Resources.”

The effort summarized in the report is an important first step toward realizing the scope of existing conflicts between the state’s regulatory instream flow protection program and the preservation and allocation of water supply for out-of-stream uses. This is primarily, but not exclusively, an issue affecting rural lands and land uses.  Ecology’s adoption of instream flow rules over the last forty years to protect numerical flow targets that exceed natural stream flows, along with judicially-defined impairment standards treating these aspirational flows as water rights with priority dates, has resulted in massive groundwater closures in conflict with state water allocation policy expressed in the Water Resources Act of 1971.  Instead of balancing the maximum net benefits and allocating water for both instream resource protection and water supply for human domestic needs and economic development, one set of values has been permitted to foreclose or predominate over the other, with the type of unintended and unfair consequences witnessed most recently in the Skagit Basin after the Supreme Court’s decision in Swinomish Indian Tribal Community v. Dept. of Ecology.

As acknowledged by the report, in both its Executive Summary and in the discussion of options for solutions, Ecology currently lacks the statutory authority to fix these problems. The report expresses Ecology’s intention to continue facilitating discussions toward solutions, especially for concepts introduced by stakeholders but not fully discussed. This comment relates to the need to fast track those discussions and examine solutions that can be presented to the legislature before more watersheds share the Skagit Basin experience or more instream flow rules are challenged in the courts. The legislature and stakeholders look to Ecology for leadership in this area and for concrete bill language that can solve these problems. This should be among Ecology’s highest priorities this year.


One of the concepts that should be more fully examined is the absence of a unique impairment standard relating to Washington’s unique instream flow “water rights.” The purpose of regulations protecting instream flows is to protect instream values, such as fish habitat, water quality, recreation, and aesthetics.  The measurement of these instream values by a target flow number that may exceed natural flows 90% of the time is an arbitrary metric with dramatic consequences to developing water supply for new uses, including development in rural areas that cannot be served by existing public water systems. Alternatives need to be developed for protecting these instream values from degradation, utilizing mitigation alternatives that focus on those values and provide opportunities for enhancement. Enhancing streamside habitat to improve temperature, shading and holding areas for migrating salmon, for example, may accomplish far more protection of instream values than insisting on bucket for bucket in-kind, in-place, in-kind water replacement as with the current standards. Statutory authority should be created to authorize alternative standards for determining impairment and mitigation of instream values, so that instream flow rules do not function solely as a means for protecting the status quo and shifting uncertain and costly water management burdens to rural areas and communities with insufficient water supplies for human needs.


The current impairment standards are also overly precautious in other respects, such as their focus only on one aspect of changes to the hydrologic cycle incident to development of new groundwater uses. New uses of groundwater do not only withdraw water from an aquifer, they are also incidental to land use changes including land clearing, septic systems and storm water retention/infiltration that returns water to the aquifers, often at a higher elevation and greater quantity relative to streams than their withdrawals. The current regulatory system ignores these benefits and offsets. Statutory directives to consider the full range of hydrologic cycle effects should be developed and recommended. Serious consideration should also be given to exempting de minimus withdrawals, such as rural domestic uses, from the regulatory effect of minimum instream flows and stream closures, consistent with constitutionally protected property rights and common sense use of our limited regulatory resources.


The use of the “overriding considerations of the public interest” exception has been criticized and litigated because it has assumed the importance of a safety valve for Ecology from the otherwise unworkable numeric instream flow impairment standard. Legislative direction on the scope and use of OCPI would be helpful, and legislative preservation of OCPI findings in existing instream flow rules after Swinomish would preserve the tough bargains already made in several watersheds to increase instream flows in exchange for reservations of water for certain out-of-stream uses. OCPI is not a complete solution to the current conflicts, however, and should not be relied upon as the most practical alternative.


Several stakeholders have commented that the utility of mitigation banks and alternative water supplies such as cisterns provide broadly useful and efficient means of solving the current conflicts. I disagree.  While mitigation banks certainly have their place in basins that are over-appropriated and adjudicated, the notion that they should be accepted as a state-wide solution is very troubling. First, relying on mitigation banks does not solve the endemic problem with the current instream flow impairment standards and allocations that violated state water allocation policy from the outset. Forcing counties and rural property owners to buy mitigation credits as a condition of using an otherwise permit-exempt well is perpetuating an unbalanced water allocation system and eliminating the possibility of more comprehensive solutions.  Second, mitigation banks use public money and/or regulatory incentives to fund purchases of privately-owned water rights, creating a captive market and artificially high values for water rights used to mitigate the perceived impacts of permit-exempt wells. Water banks often operate without adequate transparency, leaving property owners required to “buy” mitigation credits wondering who is really benefitting and whether the system is fair and accountable. Cisterns as an alternative drinking water supply create public health questions and regulatory/cost uncertainties that impact rural property values and sales compared to small or individual groundwater systems.  They may also be a short-term solution because the question of legal availability of captured storm water has not been resolved.


I applaud the Department of Ecology’s efforts and the participation of stakeholders and policy makers in this effort to find solutions to rural water supply issues. I look forward to participating in the follow up efforts to study additional solutions and propose legislative fixes.


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