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.

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Appeals Court Reverses GMHB Ruling re Whatcom County in Hirst Case: Permit-Exempt Wells Not Governed by Nooksack Instream Flow Rule

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).[1] 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.[2] In Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd.,[3] 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.[4]  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,[5] 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.[6] 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[7] 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.

[1] Whatcom County v. Western Wash. Growth Mgt. Hearings Bd., Ct. App. Div. 1, Case No. 70796-5-1 (Feb. 23, 2015).

[2] RCW 36.70A.070(5)(c)(iv).

[3] Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 144, 256 P.3d 1193 (2011). 

[4] 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).

[5] Postema v. PCHB, 142 Wn.2d 68, 11 P.3d 726 (2000).

[6] Swinomish Indian Tribal Community v. Dep’t of Ecology, 178 Wash.2d 571, 311 P.3d 6 (2013).

[7] http://www.ecy.wa.gov/programs/wr/wrac/rwss-wag.html

Ecology Issues Rural Water Supply Strategy Report

Since the water availability crisis in the Skagit basin erupted after the Supreme Court’s decision in Swinomish v. Ecology, Ecology held several workgroup meetings with tribal representatives and other stakeholders to develop and assess potential solutions to the agency’s challenges with instream flow regulations and water availability. Ecology issued its report on this effort in November 2014, entitled “FINDING RURAL DOMESTIC WATER SOLUTIONS WHILE PROTECTING INSTREAM RESOURCES.”

The report summarizes stakeholder suggestions and comments on potential solutions involving existing statutory authority that range from establishing mitigation water banks, use of cisterns, broadening mitigation options, considering the full hydrologic cycle, and relying on better integration of land use planning. It also summarizes stakeholders discussions about options that would require new statutory authority, including clarification of Ecology’s use of OCPI, broadening mitigation options for impacts to instream flows and closed streams, giving domestic water use a statutory priority over other uses, and authorizing rules that would define impairment of instream flows and mitigation qualitatively rather than protecting flows numerically. The latter approach was suggested by the owner of this blog, and would focus more on habitat quality instead of the specific instream flow numbers. This approach could include a consultation process with Tribes, and local, state and federal fishery managers to determine impairment and mitigation, or could be tied to watershed planning to develop
standards basin-by-basin.

The report states that no consensus was reached among stakeholders about the best approach to protect instream flows while providing water for future rural domestic uses. Less support was voiced for modifying “OCPI” authority or creating a domestic water use priority, and more support was expressed for broadening mitigation options.

Ecology’s analysis is that all the options involving existing statutory authority have limitations that would challenge successful adoption of a new or amended instream flow rule in Washington State. The report opines that discussions about defining impairment in statute could lead to potential solutions, and encourages continued stakeholder discussions. Ecology staff pledges to support ongoing discussions about solutions, but the agency was not able to meet the administrative timelines for legislative proposals for the 2015 legislative session. Those interested in learning more or participating in stakeholder discussions should visit Ecology’s website at: http://www.ecy.wa.gov/programs/wr/wrac/rwss-leg.html. The next stakeholder meeting is scheduled for January 5, 2014.

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

Department of Ecology Searches for Solutions to Swinomish Decision

Under the umbrella title of “Finding Solutions to Rural Water Conflicts,” the Department of Ecology is forming a workgroup to search for solutions to the state of Washington’s water allocation and management framework. Its goal is to ensure reliable future water supplies for new consumptive uses while also protecting instream flows.  Ecology acknowledges that the Supreme Court ruling in Swinomish v. Ecology increases this challenge.  Regarding the nature of potential solutions, Ecology’s Water Resources Policy Director, Dave Christensen, stated that “everything is on the table.”  The first of several workgroup meetings for this effort is scheduled for Monday, June 16th from 1:00 to 4:00 p.m. in the Ecology Auditorium at its headquarters in Lacey.  More information about the meetings and background materials can be obtained on Ecology’s website at this link.

 

Court Upholds OCPI Finding for City of Yelm Water Right Permit

On May 8th, Judge Christine Schaller upheld a new water permit for the City of Yelm that was  based on what the Department of Ecology calls its “gold standard” for OCPI findings.  Judge Schaller ruled in favor of respondents City of Yelm and Department of Ecology and against appellant Sara Foster and intervenor Center for Environmental Law and Policy (CELP).  The Foster appeal contended that Ecology could not grant a water right based on the “overriding considerations of public interest” exception at RCW 90.54.020 after the Supreme Court’s decision in Swinomish v. Ecology,  which purported to narrow the scope of OCPI and prevent it from being used to impair adopted minimum instream flows.

In the first phase of this appeal before the Pollution Control Hearings Board, the Board’s OCPI analysis for the Yelm permit included twelve detailed factors and concluded that the regional mitigation plan that Yelm participated in met the statutory standard for allowing an impact to instream flow when the benefits of the proposal clearly outweighed its environmental harm.  Among the twelve factors were exhaustion of every feasible option to provide in-kind mitigation before turning to out-of-kind mitigation and consultation with stakeholders.

Judge Schaller ruled from the bench that the OCPI scenario in Swinomish (involving rulemaking to create reservations with no mitigation) was distinguishable from the scenario approved by Ecology and the Board, where approval of the permit application was based on a comprehensive mitigation plan.  An order to effectuate the ruling is being drafted.  While an appeal is possible and could bring the OCPI statute to the Supreme Court in another context, the ruling keeps open a narrow door for thoroughly and thoughtfully mitigated municipal water right applications.

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.