Tom will be moderating a panel of distinguished speakers at this year’s LSI Water Law in Washington seminar on July 25, 2017 in Seattle. The panel topic is, “Local Water Resource Planning after the Hirst Decision, the evolving interplay between water resource planning under the Growth Management Act and state water law.” Other speakers scheduled to participate include Joe Mentor with the developer perspective, Rachel Pachal Osborne with the environmental perspective, Assistant AG Alan Reichman with the state government perspective, and Kittitas County Commissioner Paul Jewel with the local government perspective. Registrations are being taken online at: http://www.lawseminars.com/seminars/2017/17WATWA.php
The Washington Supreme Court’s decision in Whatcom County v. Hirst, will significantly impact rural water availability by requiring Washington counties to ignore exceptions for permit-exempt wells in many of the state’s instream flow protection rules, causing considerable and unwarranted hardship to rural property owners. The decision expands the Court’s already extreme protection of regulatory instream flows by requiring counties to make independent “legal water availability” determinations under the Growth Management Act (GMA) before issuing building permits that rely on permit-exempt wells as water supplies.
Both GMA planning counties and non-GMA counties throughout the state are facing confusion about how to implement the Hirst decision. Several counties have declared moratoriums until it is sorted out, which in turn has led to numerous calls for legislative fixes. Given the plethora of regulatory ironies created by the decision, some of which are described in this article, these calls for reform deserve the Legislature’s attention in the upcoming session.
The attached article looks at the history of the Court’s self-described “instream flow jurisprudence” and asks whether the Court hasn’t expanded the scope of instream flow water rights and exceeded its constitutional role as an arbiter of cases with the Hirst decision. A companion follow-up article will look at potential legislative fixes and provide compliance options for counties and developers of rural properties.
 Whatcom County v. Eric Hirst, et al., Wash. Supreme Ct. Case No. 91475-3 (slip opinion dated Oct. 6, 2016).
Tom will be speaking at three upcoming seminars on water rights topics.
On Thursday, April 14, 2016, at 10:30 to 11:30 a.m., Tom will address the Washington Association of Sewer & Water Districts at the Yakima Convention Center in Yakima, Washington on the topic, “Water Availability and Permitting Issues.”
On Thursday, June 16, 2016, at 3:00 p.m., Tom will co-instruct on the subject “New Mitigated Water Rights,” at The Seminar Group’s “Water Rights in Central Washington” seminar in Wenatchee, Washington.
Law Seminars International has also invited Tom to co-chair this year’s Water Law in Washington seminar in Seattle. A date has not yet been set, but it will likely take place in late July. Tom also co-chaired this seminar last year.
On January 8, 2016, the Plaintiffs’ summary judgment motion in the matter of Magdalena Bassett, et al., vs. Dep’t of Ecology was argued before Judge Gary Tabor of the Thurston County Superior Court. Bassett is a declaratory judgment action challenging the validity of the Dungeness River Basin instream flow protection rule. The complaint alleges that Ecology exceeded its statutory authority in several respects, including failure to allocate water according to the maximum net benefits to the public, as required by the Water Code and the Water Resources Act of 1971. Judge Tabor allowed only one legal issue to be briefed on summary judgment — whether the four-part test for issuance of new water rights was required before Ecology adopts a minimum instream flow water right by rule. The Supreme Court opinion in Swinomish Tribal Community v. Ecology two years earlier implied that the four-part test was required for instream flow rules, because the same statute that the Court held required the four-part test for reservations adopted by rule (RCW 90.03.345) also applies equally to minimum instream flows — both are appropriations with priority dates that are adopted by rule rather than by application for permits. After hearing arguments by Tom Pors on behalf of Plaintiffs, Stephen North on behalf of Ecology, and Dan Von Seggern on behalf of the Intervenor Center for Environmental Law & Policy (CELP), Judge Tabor denied Plaintiffs’ motion for summary judgment but kept the issue alive for a hearing on the full administrative record.
Judge Tabor stated from the bench, “[I]n ruling that I do not find that there is an absolute legal requirement that there be the four-part test, that does not necessarily imply that a four-part test might not be appropriate in this case.” Thus, he denied Ecology’s request for summary judgment that the four-part test is never required for adoption of minimum flow rules as a matter of law. Judge Tabor considered arguments that the entire statutory scheme for water rights appropriation and instream flow protection required some sort of public interest evaluation, such as “maximum net benefits to the public” before all available waters in a basin were appropriated for instream flows. He stated further, “[S]o maximum benefits test, that certainly may be an issue in the administrative review, and there’s some suggestion that based on that rule the four-part test might be required.”
A summary judgment ruling in favor of Plaintiffs would have resulted in the invalidation of the Dungeness Rule because it is uncontested that Ecology did not make four-part test findings before adopting minimum flows in the Dungeness Rule. In fact, Ecology has never made four-part test findings or conducted a maximum net benefits test before adopting any of its 29 instream flow protection rules, many of which have the unintended effect of closing basins to new appropriations for domestic, municipal or other uses without rigid water for water replacement mitigation.
A hearing on the administrative record in the Bassett case is expected before the end of the year. Please contact Tom Pors if you have questions about the Dungeness Rule challenge or challenging other instream flow protection rules that exceeded Ecology’s statutory authority.
I am very excited about co-hosting this year’s annual Water Law in Washington seminar by Law Seminars International. We have a stellar line up of professional speakers and will cover numerous current issues of interest to water law practitioners, water users and resource managers. Beginning with an optional “Water Law 101” presentation on the fundamentals of water law, the conference will have a special focus on recent decisions addressing drought year water rights permitting and management, in-stream flow rules and the rural water supply dilemma, recent cases addressing the intersection of land use
and water rights law, and the role of science in water management.
The two-day conference will be held in Seattle on July 28 and 29, 2015. Click here for a brochure and registration information. I hope to see you there!
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.
VALUES- BASED IMPAIRMENT AND MITIGATIONS STANDARDS
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.
FULL CONSIDERATION OF HYDROLOGIC CYCLE EFFECTS AND DEREGULATION OF DE MINIMUS WITHDRAWALS
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.
MITIGATION BANKS AND ALTERNATIVE WATER SUPPLIES
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.
Whatcom County has won its appeal in a closely watched case at the intersection of water rights and land use law. Division One of the Washington Court of Appeals held that the Western Washington Growth Management Hearings Board erroneously interpreted the Nooksack Basin Instream Flow Rule, Chapter 173-501 WAC, and reversed the Board’s rulings that Whatcom County was out of compliance with the Growth Management Act (GMA). The ruling, in what has become known as the Hirst case, rejected a presumption by the Board that new permit-exempt wells will impair closed streams and minimum flows in basins with instream flow protection rules. The Court of Appeals also rejected the Board’s statutory interpretation that counties must make independent determinations of “legal availability” of groundwater before issuing building permits or approving subdivisions, especially where such determinations could be inconsistent with Department of Ecology interpretations of its own instream flow rules.
The case began with challenges by Eric Hirst and Futurewise to Whatcom County’s comprehensive plan and development regulations on grounds that, among other things, they failed to include adequate provisions to protect ground and surface waters with respect to individual permit-exempt wells. GMA requires counties that plan under GMA to include a rural element consistent with GMA’s goals, including measures to protect critical areas and surface and groundwater resources. In Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., the Supreme Court held that Kittitas County’s development regulations violated GMA because they didn’t prevent daisy-chaining of multiple permit-exempt wells for projects under common ownership or a common scheme of development, which allowed developers to violate limitations on the use of permit-exempt wells. The Supreme Court held that growth management hearings boards have jurisdiction over petitions challenging whether development regulations violate GMA provisions such as the requirement to protect groundwater resources and RCW 19.27.097 and 58.17.110, which require counties to assure adequate potable water is available when issuing building permits and approving subdivisions. While holding that counties are responsible for land use decisions that affect groundwater resources, the Court also recognized the statutory role of Ecology, adding “[Ecology] ought to assist counties in their land use planning to adequately protect water resources.” This assistance is discussed further below.
The primary issue in the Hirst case relates to the significance of Ecology’s instream flow rule for the Nooksack Basin, Chapter 173-501 WAC, and whether it prohibits new exempt well uses that may impair closed streams and minimum flows. The Board interpreted the Nooksack Rule as precluding new permit-exempt uses as a matter of law, and ruled that the County’s measures to protect water availability did not comply with GMA because they allowed the use of permit-exempt wells except “where [Ecology] has determined by rule that water for development does not exist.” The Court of Appeals reversed, holding that the Board erroneously interpreted the law as requiring the County to make its own separate determination of legal water availability. It ruled that the County complied with its statutory responsibility and the Kittitas decision by invoking the assistance of Ecology regarding the availability question. Ecology had advised the County about exempt wells and submitted an amicus curiae brief to the Court of Appeals interpreting the Nooksack Rule as not applying to permit-exempt water uses, thus rendering them legally available for the issuance of building permits in rural areas in the Nooksack basin. The Court also held that the Board erroneously relied upon a December 2011 letter from Ecology to Snohomish County relating to restrictions against permit-exempt wells under a different basin rule with different language, finding that the letter had nothing to do with the Nooksack Rule.
The Hirst and Futurewise appellants argued that the Board’s determination of non-compliance with GMA was consistent with Supreme Court precedent interpreting water availability vis-à-vis instream flow rules. In Postema v. PCHB, the Court held that ground water is not available if its withdrawal would have “any effect” on a stream closed to further appropriation, or if it would impair a minimum flow established by regulation. The Court of Appeals rejected these arguments because Postema addressed issues arising from “applications” for water rights, not permit-exempt withdrawals, and because the appellants’ argument conflicts with Postema by assuming a uniform interpretation of instream flow rules.
Ecology’s interpretation of the Nooksack Rule was key to the result in the Hirst case. The question remains, however, how Ecology will interpret other instream flow rules and whether those interpretations will lead to GMA appeals or rural building moratoriums in other counties. In many of Ecology’s instream flow rules, in-house domestic uses are exempted. In others, Ecology is required to consider the “natural interrelationship between ground and surface waters” with no specific exemption for permit-exempt water uses. In at least eight watersheds, Ecology invoked “overriding considerations of public interest” (OCPI) to reserve water for out-of-stream uses that conflict with instream flows, reservations that are now legally suspect after Swinomish Indian Tribal Community v. Dep’t of Ecology. In the Skagit, Dungeness and Upper Yakima basins, rural property owners are already restricted from obtaining building permits without mitigation, and mitigation through local water banks is not available everywhere it is needed.
Ecology’s Water Resources Program is updating its advice to counties regarding water availability determinations like those made in the Hirst case. The status of Ecology’s project, which involves a large stakeholder group, can be followed on Ecology’s website or through participation in the Water Resources Advisory Committee. Ecology’s goal is to develop an updated set of water availability guidelines for each watershed by the end of 2015. That guidance could lead to GMA appeals in some counties with the goal of preventing new building permits based on permit-exempt wells. It could also lead to litigation on the key issue in the Hirst case – whether instream flow rules should be interpreted as requiring denial of building permits and subdivision approvals with permit-exempt water supplies. The impact of that on counties, rural land usage, and property rights would be significant, raising constitutional issues and increasing pressure on the legislature for a solution. The author of this article would not be surprised if the Hirst case is appealed to the Supreme Court, or if other challenges like it pop up in other counties.
 Whatcom County v. Western Wash. Growth Mgt. Hearings Bd., Ct. App. Div. 1, Case No. 70796-5-1 (Feb. 23, 2015).
 RCW 36.70A.070(5)(c)(iv).
 Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 144, 256 P.3d 1193 (2011).
 See Dept. of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 43 P.23d 4 (2002) (common project involving division of land can only qualify for one group domestic permit-exempt well for groundwater use up to 5,000 gallons per day).
 Postema v. PCHB, 142 Wn.2d 68, 11 P.3d 726 (2000).
 Swinomish Indian Tribal Community v. Dep’t of Ecology, 178 Wash.2d 571, 311 P.3d 6 (2013).