Legislature Passes Hirst and Foster Fix, Authorizes $300 Million for Streamflow Restoration

After last year’s legislative deadlock that failed to adopt either a fix to rural water availability or a capital budget, the Washington State Legislature made quick work of a compromise bill, ESSB 6091,[1] which was the first bill signed into law in the 2018 session. The bill has many features, including:

  • It requires updates to several watershed plans and new watershed restoration and enhancement (WRE) plans in multiple watersheds;
  • It allows counties and cities to comply with GMA relating to surface and groundwater protection by relying upon applicable minimum instream flow rules, effectively overruling the Hirst decision in most watersheds;
  • It grandfathers wells that were drilled prior to the January 19, 2018 effective date in all but a few watersheds but with lower daily volumes;
  • Pending development of required WRE plans and rules, it establishes a $500 fee for building permits based on exempt wells with a maximum 950 gallons per day per connection;
  • It establishes a watershed restoration and enhancement account, with new bond authority and the intention to appropriate $300 million over 15 years for streamflow enhancement projects; and
  • It establishes a Joint Legislative Task Force to develop and recommend a mitigation sequencing process that may resolve mitigation availability issues from the Foster v. Yelm case, and directs Ecology to process water right applications for five pilot projects using a new mitigation sequencing standard.

I am preparing a more detailed article on ESSB 6091, which will be published on my website, www.porslaw.com in the coming weeks.

[1] ESSB 6091, Ch. 1, Laws of 2018.


The Place for Ethics in the Resolution of Hirst and Other Water Conflicts in Washington State

This year’s legislative efforts to restore groundwater availability after the Washington Supreme Court’s decision in Whatcom County v. Hirst resulted in a partisan deadlock that also side-lined the state’s $4 billion capital budget. Economic impacts of the deadlock are now estimated to run to $11 billion and cause a $37 billion decrease in the value of undeveloped land,[1] which will dramatically shift property tax burdens to urban areas. Legislative compromise efforts stalled pending the November special election and are now unlikely to resolve these issues without a new set of tools and ideas to bring disparate viewpoints and objectives together.

This new paper by Tom Pors explains how natural resource conflict problems such as the Hirst and Foster decisions can be resolved using recognized ethical principles and shared community values. The ability to resolve a conflict ethically implies that to not resolve the conflict violates these same ethical principles. This is not just a challenge to state lawmakers and the stakeholders who lobby them, it is a comment on the current state of polarizing politics in our nation and state. In both the creation of this state’s water resource conflicts and in the process of avoiding workable compromises, we have sacrificed community moral values and ignored ethical principles. The author contends that in order to change course for the public good, we need to increase our collective awareness of the connection between water availability conflicts and these recognized ethical values. Please read the full paper at this link, or download a pdf here.

What are the Ethical Principles that Inform Natural Resource Conflicts?

Different ways of conceptualizing what water is and how human beings should use it have different ethical implications. Viewing water as a component of an ecosystem commons implicates principles of sufficiency/equity and proportionality, as explained below. Treating water as a commodity to be bought and sold, or as property to be controlled unilaterally, implicates human rights and social and environmental justice. For instance, the prior appropriation doctrine establishes property rights in water, including instream flow water rights, which can conflict with the basic human right to access drinking water.[1] In 2010, the human right to water was officially recognized by both the UN’s General Assembly[2] and the Human Rights Council.[3]

Ethicist James Martin-Schramm presented four key ethical values as relevant to the resolution of water conflicts at a 2004 seminar sponsored by Seattle University School of Theology and the Center for Water and Ethics: sustainabilitysufficiencyparticipation, and solidarity.[4] The identification and exploration of these principles was based on decades of work by theologians and ethicists dealing with environmental health and social justice issues.[5]The object of an ethical negotiation or compromise relating to water allocation is to incorporate these values in a meaningful discussion with the appropriate stakeholder interests.

Why Employ Ethical Principles in Water Allocation Conflict Resolution?

Ethics is concerned with what human beings ought or ought not to do. Water resource conflicts have been identified as a “metaphysical blindspot in ethics,” which is remarkable given that water is vital to all human endeavors and their effect on nature.[6] As evidenced by the 2017 Legislature’s failure to adopt a Hirst fix or a capital budget through three extra sessions, water management is contentious and not easily accomplished in a top-down process.

Why has the legislative process in Washington State failed thus far to resolve water availability issues? Stakeholder positions in a top down process are typically one-sided and issues are presented to legislators as existential crises, while competing users’ positions are presented as threats rather than community concerns that deserve equal attention. Groundwater management and the effects of small withdrawals on stream flow are also complex technically and subject to oversimplification and outright misrepresentation by non-technical advocacy groups. Most legislators are not well educated on the technical side of water resources and with so many competing legislative objectives, they tend to default to favored constituent or caucus leadership positions rather than debate competing ideas or engage in conflict resolution with affected parties.

Centralized management of groundwater resources in the Washington State Department of Ecology (Ecology) has failed to anticipate and avoid the prevailing judicial interpretations regarding water resource allocation and protection, including Ecology’s losing positions in the Foster and Hirst cases. (See Background section, below). Many or most of Ecology’s instream flow rules failed to anticipate the conflict between surface water protection and groundwater availability, yet Ecology has failed thus far to recognize that its rules are outdated and need substantial revision in light of new science and subsequent court decisions. Finally, Ecology has failed to draft or introduce any comprehensive solutions, despite facilitating a two-year stakeholder process to find specific solutions to rural water availability issues.[7] Stakeholder views were solicited by Ecology, but efforts were not made to engage stakeholders in dispute resolution or recognition of shared community values.

The failure of state agencies and the Legislature to resolve water resource conflicts raises the question whether it may be appropriate to place the management of water in the hands of those who have a stake in it. “Groundwater management should be in the hands of the stakeholders of the aquifer, under the supervision of the corresponding water authority. The stakeholders’ participation has to be promoted bottom-up and not top-down.”[8]

How to Develop Solutions Employing Ethical Principles?

As described elsewhere in this article, an ethical approach to resolving the state’s water resource conflicts involves initiating a process with stakeholder representatives and other decision-makers rather than relying on tried and failed top-down legislative or centralized management processes. The process used and persons invited to participate should also be guided by the same ethical values, which can be described as moral norms because they conform to our collective sense of a just society. This includes procedural and decision-making process values, such as democratic governance rights, active participation, transparency, accountability, and public-private collaboration and partnership. These values can provide answers to such questions as: Who participates in the decision-making process? How is a balance determined between the needs of human development and the need to preserve our natural resources?  This process could be used to resolve specific issues, such as legislatively adopted mitigation standards for groundwater applications affecting instream flows, for future water allocations on a watershed basis, or for individual conflicts.

Ethical Principles Applied to Water Allocation Problems

Sustainability. This value expresses concern for future generations and the planet, emphasizing that an adequate and acceptable quality of life today must not jeopardize prospects for future generations. Sustainability precludes short-sited emphasis on economic growth that harms ecological systems, but also excludes long-term conservation efforts that ignore human needs and costs.[9] The balance between conservation and human access is different for each watershed and evolves over time, because watersheds have unique fisheries and recreational assets and communities within watersheds have unique population densities and settlement/development histories. This rules out a one-sized fits all approach to sustainable water usage and conservation and suggests a greater need for flexibility and local involvement.[10]

Sufficiency. This value emphasizes that all forms of life (including people and fish) are entitled to those resources required to meet their basic needs, which is particularly relevant to such basic needs as clean air and access to drinking water. It repudiates wasteful consumption and encourages fairness and generosity.[11] Related to this is equal respect for human dignity, a fundamental principle of public health ethics.[12]

Related to the values of sustainability and sufficiency is the principle of equity and proportionality.  Meeting the needs of all persons and the environment is important, but equity and proportionate response require, in the face of limited resources, to give priority to the least well off, those most immediately at risk, and those made vulnerable by past discrimination, exclusion, and powerlessness.  This principle calls for protecting streams from over-appropriation, but also protecting ground water availability in rural areas and growing suburban communities where the most affordable housing alternatives are located. It seeks to prevent the inequities of so-called “have” and “have-not” communities.  For instance, forcing individual property owners to pay for mitigation of impacts caused by prior users of surface and groundwater is neither equitable nor proportional to the impacts caused by each new permit-exempt groundwater use.

From a financial and public health perspective, closing the safest and most affordable water supply alternative for rural development appears to be disproportionate and inequitable, especially if there are regional solutions available to mitigate for incremental cumulative effects on instream functions and values. There is also a disproportionate administrative impact to counties and state agencies administering water allocation and mitigation processes for the smallest water systems with the smallest impacts on water resources. State funding and coordination of regional mitigation efforts for cumulative impacts from the smallest users would be far more financially efficient and fair than requiring each landowner to conduct an individual water availability analysis and mitigation plan to be reviewed by county officials and potentially appealed to the courts. It would also result in better stewardship of our water and salmon resources.[13]

Participation The ecojustice norm of participation addresses the values inherent in the process of policymaking and decision making. Legislatures and courts may be influenced by powerful, well-organized, and well-funded groups on all sides of the political spectrum. For instance, there has been a rapid rise over the last decade of political contributions from federally-recognized Indian tribes, which in Washington State has been heavily tilted to the Democratic Party.[14] The most significant water right appeals in Washington state over the last decade have been funded by tribes and environmental organizations, not by consumptive water users or public water systems.[15] A dominant influence over government by any particular interest group is not well suited to the equitable distribution of water or any public resource.  From an ethical point of view, governance mechanisms should involve a deliberative and participatory process marked by transparency, universal access to information, inclusiveness, and individual and community empowerment so that all may take advantage of the open information and the participatory opportunities.[16]  Participation implies equality of access to decision-making processes, and is not inconsistent with balancing the needs of human development with the need to preserve our natural resources and maintain a healthy ecosystem.

The water rights that most limit legal availability of water in Washington State are minimum instream flow water rights, which are established and managed by Ecology for the purpose of preserving environmental values such as water quality, fish habitat, recreation and aesthetics. Unfortunately, the rule-making processes for most of these instream flow rules did not allocate water for future human domestic needs despite statutory policy that water be allocated according to the maximum net benefits to the public. RCW 90.54.020(2), 90.03.005. These instream flow rules have not been updated despite new information linking groundwater and surface water and new court decisions affecting the availability of groundwater.  The Washington Supreme Court has interpreted instream protection rules as excluding other uses of water, thus denying human access to water despite the failure to balance the public interests between water for instream and out of stream needs. Thus, the state’s groundwater has essentially been closed to new uses in order to protect instream flows without any public notice or robust balancing of public interests between environmental and human water needs. This process excluded public participation in the closure of groundwater that is relied upon by rural property owners and growing communities. Some open and public balancing of interests in groundwater should have happened, but did not.

Solidarity.  This moral norm emphasizes kinship and mutual interdependence, encourages assistance for those who suffer, discourages discrimination and oppression, and embodies a fundamental communal nature of life in contrast to individual rights and the pursuit of accumulation.  The notion of solidarity and interdependence applies in both social and ecological contexts, between human communities and nature. In water ethics, solidarity reminds us of what may be called our “upstream and downstream interdependence.”[17]

Treating water rights as private property implicates the conflict between self-interest and the social/ecological common good. There are situations in which the pursuit of rational self-interest leads to outcomes that are irrational and harmful to the interests of other individuals and communities, the so-called tragedy of the commons.  In other words, the human interests served by sustainable and sufficient water supply and by biodiversity and maintenance of a healthy environment are often not well served by encouraging individual behaviors that seek to maximize their self-interest. Treating water as a commodity under the prior appropriation doctrine, and creating incentives to preserve private water rights for future markets may be inconsistent with several of the ethical principles described above. Understanding that water is a common resource and a fundamental need, and that sustainable water utilization is a common good, can provide the basis for ethically appropriate solutions to current and future water availability issues.


The ethical principles of sustainability, sufficiency, participation, and solidarity are a useful guide for both governmental and individual behavior in the resolution of water resource conflicts. The Washington legislature and governor, and the stakeholders/lobbyists who advise them, should consider these principles in the development of a participatory stakeholder process for resolving the most vexing groundwater availability issues in the state, rather than continuing to defend the self-interests of one stakeholder group or set of values in preference to others.  Each ethical value or moral norm described in this article is as valid and worthy of protection as the others, and we all have an ethical responsibility to the larger communities we live and work in to join others and consider their needs in the process of resolving water availability disputes. That includes providing communities access to water based on achievable mitigation and public interest decision-making.  It also means preventing cumulative impacts to rivers and streams without effective and adequate mitigation.

The state already possesses workable water policy fundamentals in the Water Resources Act of 1971 (chapter 90.54 RCW) for the allocation of water, but has strayed from them over the last several decades to maintain consistency with a preference for instream protection before allocating water to people and communities. As a result of the state’s single-minded effort to protect instream flows, it has fallen into the trap of closing the state’s ground waters to the public, at enormous cost to people and water-short communities, without adequate public interest evaluation and with little hope of a solution.[18]  That missing public interest balance should be the focus of legislative and gubernatorial efforts to solve the water allocation problem, using stakeholders who agree to employ ethical principles to guide the decision-making process.


The author is the principle of Law Office of Thomas M. Pors in Seattle.  For additional background concerning recent Supreme Court water cases and the conflict between instream flow regulation and groundwater availability, see the author’s other articles at this link.

Background on Hirst and Foster and the Lack of Water Availability in Washington

Hirst.  The Hirst decision affects water availability in rural areas by requiring counties to protect surface waters and to independently determine whether groundwater from permit-exempt wells is “legally available” before issuing building permits or subdivision approvals under the Growth Management Act (GMA).[19]  The Court previously determined that there is no “de minimus” impairment of minimum instream flow water rights, and that “any impact” whatever to closed streams is grounds for denial of groundwater permit applications.  Because a water right application is not required for permit-exempt uses of groundwater, county decisions on building permits did not previously consider legal water availability or impairment from permit-exempt wells, and counties relied on Ecology’s advice whether such wells were regulated or not by Ecology’s instream flow rules. In Hirst, Ecology advised Whatcom County and then the courts that permit exempt wells were not regulated by the Nooksack basin instream flow rule.  However, over 1600 exempt wells in the basin undoubtedly had a cumulative impact on instream flows of the Nooksack River and tributaries, which would be worsened by another 600 or more pending applications for new exempt wells. This proliferation of unregulated and unmitigated wells prompted a challenge by environmental organizations to Whatcom County under GMA.

The Growth Management Hearings Board determined that Whatcom County’s GMA Plan and development regulations failed to protect groundwater and minimum instream flows.  The Board decision was upheld by the Supreme Court, despite Ecology’s interpretation that the Nooksack Rule did not regulate exempt wells.  While the Court’s ruling applies only to Whatcom County, its interpretation of GMA is assumed to apply to other counties as well.  The Yakama Tribe has already sued Okanogan County claiming that Hirst requires the county to protect instream flows in the Okanogan and Methow River basins from impairment by permit-exempt wells.

Since Hirst, some counties have adopted building permit moratoriums for new groundwater-based uses, and others are requiring permit applicants to prove that groundwater is legally available or will not “impair” regulatory minimum flows and closed streams.  This could add over $10,000 to the cost of building a home yet still result in appeals and legal uncertainty for both property owners and counties.

Some banks have announced they will no longer issue mortgages in rural areas for properties with wells drilled after the Hirst decision.  The problem with legal availability, however, logically extends to all properties with wells drilled after the adoption of minimum flow rules, beginning in the 1970s, because the Court’s interpretation is that permit-exempt water supplies are interruptible if junior in priority date to a minimum instream flow, and thus not suitable for domestic water supply.  This is significant, because if the Legislature does not clarify the nature of permit-exempt and instream flow water rights and resolve this interruptibility question, new cases could arise that would impact permitting for home expansion or replacement and interrupt financing or refinancing for hundreds of thousands of homes state-wide.

Foster.  For urban and suburban areas with inadequate water for future growth, and for rural areas seeking approval of new mitigation banks to deal with Hirst issues, an equally problematic Supreme Court decision is Foster v. Dept. of Ecology and City of Yelm.[20]  In Foster, the Court reversed a water right approved by Ecology for the City of Yelm, despite an extensive regional mitigation plan designed to offset impacts from a new municipal well on instream flows in the Deschutes and Nisqually Basins. The Court found that Ecology had no statutory authority to allow out-of-kind mitigation for “legal impacts” to instream flow water rights and interpreted the “overriding considerations of public interest” (OCPI) statute as applying only to temporary water uses. It is rare that year-round water for water mitigation is available to offset the impact of any groundwater use on regulated surface waters.  As a result, the issuance of new municipal water rights and water rights changes, including the creation of mitigation banks to allow permit-exempt wells in rural areas, often depends on finding the unfindable: year-round water rights available to purchase for mitigation in all areas of a basin that are potentially impacted by a groundwater withdrawal. Expensive storage and engineered aquifer recharge options may be needed to offset small flow impacts that may not impede the environmental functions of regulated streams, instead of allowing habitat or aquatic function mitigation for impacts to habitat and other aquatic functions.  These legal and financial uncertainties have caused communities like Sumner and Spanaway in Pierce County to suspend or abandon plans for new wells needed to provide safe and adequate water to the populations they serve. It also dramatically increases the costs for public water systems to upgrade aging water sources in order to provide safe and secure water to the public.

[1] The state’s integration of instream flow protection into the Water Code and the prior appropriation doctrine utilize an ownership-based policy of exclusion, treating water as a commodity rather than a resource.

[2] General Assembly Resolution 64/292 of July 28, 2010; cited in Neelke Doorn, “Water and Justice: Towards an Ethics of Water Governance,” Public Reason 5 (1): 97-114 (2013).

[3] Human Rights Council Resolution 15/9 of September 30, 2010.

[4] James Martin Schramm, “Toward and Ethic of EcoJustice,” from Moral Issues and Christian Responses, at pp. 259-63, by Patricia Beattie Jung and L. Shannon Jung, 8th ed. (2013).

[5] Dieter T. Hessel, “Religion and Ethics Focused on Sustainability,” Environmental Law Reporter, 39 ELR 10291 at 92 (April 2009).

[6] Jeremy J. Schmidt and Christiana Z. Peppard, “Water Ethics on a Human-Dominated Planet: Rationality, Context and Values in Global Governance,” WIREs Water 2014. doi: 10.1002/wat2.1043.

[7] “Finding Rural Domestic Water Solutions While Protecting Instream Resources,” Dept. of Ecology Publication 15-11-007 (August 2016). https://fortress.wa.gov/ecy/publications/documents/1511007.pdf

[8] Llamas, Ramon. Water and Ethics: Use of Groundwater. France: UNESCO, 2004, p. 24.

[9] Schramm, ibid, at 260-61.

[10] Llamas, et al, ibid, at 17-18.

[11] Id.

[12] Bruce Jennings, “Principles of Water Ethics,” from: Minding Nature: August 2009, Volume 2, Number 2.

[13] Chris Pitre and Sharon Haensly, “Water for rural development: tapping the Hirst ruling,” Daily Journal of Commerce, Sept. 28, 2017.

[14] See, e.g., Erik Smith, “Tribes Dumping Big Money into Legislative Campaigns,” Wash. State Wire, Sept. 5, 2012.

[15] Recent appeals by tribes and environmental organizations challenged Ecology’s authority to allocate water for out of stream uses when it conflicts with instream flow protection, which resulted in the SwinomishFoster and Hirst decisions. These decisions protect instream flows but also impact water availability for people in rural and under-served urban areas of the state.

[16] Jennings, ibid.

[17] Jennings, ibid.

[18] It is ironic that progressive-leaning environmentalist politics have become most closely identified with this commodity driven view of “legal water availability” and that conservative-leaning rural property rights advocates have become most closely identified with the resource view of protecting human rights to access affordable water supplies.

[19] Whatcom County v. W. Wash. Growth Mgmt. Hr’gs Bd. (“Hirst”), 186 Wn.2d 648 (2016).

[20] Foster v. Dept. of Ecology, 184 Wn.2d 465 (2015).

[1] “Economic Impact Research of Exempt Wells,” HR2 Research and Analytics and BIAW (Sept. 7, 2017).

How to Fix the Water Availability Train Wreck

Last summer I presented a paper at the LSI Water Law in Washington seminar on problems with the status quo relating to water availability laws and regulations in Washington State. The paper proposed potential solutions to the rural water supply dilemma and water rights permitting breakdown after the Swinomish v. Ecology decision. Months later, the Department of Ecology and stakeholders in the Rural Water Supply Strategies Task Force briefly debated the idea I suggested of defining impairment specifically for minimum flows and closed streams and using a values-based standard for determining impairment and evaluating mitigation. Predictably, environmental groups and native American tribes balked at any new legal standards and defended the status quo, in which most minimum flow regulations have the unintended effect of closing entire basins to new appropriations of water and mitigation options are extremely limited. It is no easy task to fix problems four decades in the making, especially after the State’s own solutions have been rejected by the Supreme Court. These are, unfortunately, polarizing issues.

I recently updated my solutions paper to reflect the Supreme Court’s decision in the Foster v. Ecology and City of Yelm decision on October 8, 2015, which tossed out OCPI as authority not only for out-of-kind mitigation but for any non-temporary use of water. Motions for reconsideration are still pending in that case, but it has an immediate impact on Ecology’s water rights permitting program and the rural water supply dilemma. You can read my paper concerning the Foster decision here.

I believe that the keys to solving these problems are recognizing that: (1) the status quo is not the best way to protect and enhance instream functions and values, and (2) the fundamental nature of minimum flow water rights differs from out-of-stream appropriations in so many important respects that impairment analysis and mitigation evaluation must be better matched to the purposes for which minimum flows are adopted in order to accomplish the goals of providing water for both fish and people. Much can be accomplished by interpreting the intent of groundwater provisions in existing instream flow rules. Impairment and water availability criteria must be developed that protect instream values instead of focusing only on proxy flow numbers that were established without considering the maximum net benefits for the public. This can be accomplished without retreating on the fundamental policy of protecting instream resources and without violating treaty rights.

Reasonable minds can differ on this subject. However, when the system of instream flow protection and water allocation for other purposes is broken, as it is now, stakeholders and the government need to consider workable alternatives to the status quo. It should not be about winners and losers in a regulatory battle for control of the public’s water. It is time to focus on how the public benefits most from both instream flow protection and reasonable use of water for growing populations. Until we correct the legal water availability issues related to the current one molecule impairment standard for minimum flow water rights, it’s the lawyers who will get the most benefit from the status quo.

You can download and read my updated solutions article here. Please feel free to comment on this blog or directly to the author.

OWL v. KGH: PCHB Decision Opens Door to New Impairment and Mitigation Standards

     The Pollution Control Hearings Board has ruled that the Washington State Department of Ecology has “implied authority” to allow out-of-kind mitigation for impacts to instream flows.[1] The Board’s carefully crafted ruling regarding its own jurisdiction also acknowledges Ecology’s authority to amend numeric instream flow rules and subsequently approve new appropriations without minimum flow conditions.

     The Board’s summary judgment ruling in OWL v. KGH rejected arguments by two environmental groups that would have extended last year’s Supreme Court ruling in Swinomish Indian Tribal Community v. Ecology[2] to water rights permitting decisions. Underlying the Board’s decision is its finding that minimum instream flows set by rule are “regulatory” and can be amended, whereas “base flows” are statutory and must be protected from impairment by new water right permits even if regulatory instream flows are made “inapplicable” to a class of water uses.

     While concluding that out-of-kind mitigation is not “per se unlawful,” the decision complicates what is expected to become one of Ecology’s principal fixes to water allocation regulatory problems in the post-Swinomish era. What precisely are “base flows” that must be protected from impairment and how do they differ from “minimum flows” set by regulation? How can one establish non-impairment of these base flows on a case-by-case basis, especially if future rule amendments bypass established minimum instream flows that the Supreme Court has described as water rights with priority dates that must be protected from impairment?

Click here for a complete copy of my article on the OWL v. KGH decision.

[1] Okanogan Wilderness League (OWL) and Center for Environmental Law and Policy (CELP) v. State of Washington Department of Ecology and Kennewick General Hospital (KGH), PCHB No, 13-146, Order on Motions for Summary Judgment (July 31, 2014).

[2] Swinomish Indian Tribal Community v. Ecology, 178 Wn.2d 571, 311 P.3d 6 (2013).

Guest Post: Water Law Issues from the Hydrogeologists’ Perspective, by Robinson Noble, Inc.

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

How Messed Up is Washington’s Water Allocation System After Swinomish Indian Tribal Community v. Ecology?

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.