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.
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. 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 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.
 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).
 Swinomish Indian Tribal Community v. Ecology, 178 Wn.2d 571, 311 P.3d 6 (2013).
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
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 email@example.com. 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.