Monthly Archives: September 2014


CELP joins with Tribes to Promote Balanced Solutions in Rural Water Supply Task Force Meetings

By Bruce Wishart, CELP Legislative Director

When the legislature adopted the state groundwater code in 1945, the landscape of Washington State was markedly different than it is today. At the time, there was so little development, even in urbanized areas, that it was felt that water drawn by wells for domestic use was so inconsequential that there was no need to permit the activity. Wells drawing less than 5,000 gallons a day were exempted from state water right permits. For many years, without permits, there was no real analysis of whether wells were having an impact on existing water rights and instream flows.

Flash forward 70 years and the picture had changed considerably. Considerable growth, even in rural areas, has led to water scarcity across the state, even on the damp Westside. New science and data on the “hydraulic continuity” between groundwater and surface water has demonstrated that we ignore exempt wells at our peril. Existing water right holders, whose wells are now threatened by the explosion of unpermitted wells, together with tribes and environmental groups led by CELP, are increasingly focused on this growing problem.

Recent Supreme Court decisions have highlighted the obligation of both local government and the state to properly manage unpermitted wells to avoid impacts on instream flows and existing water rights. These decisions, particularly Swinomish Indian Tribal Community vs. Washington Dep’t of Ecology (2013), have underscored the need for state and local authorities to provide proper management of water resources. The issue regularly comes before the legislature, as developers and others have attempted to erode these protections and return to the ‘hands off’ scheme of years past. On the positive side, however, several local jurisdictions are steadily working to put in place management programs designed to allow new development only when water impacts are properly mitigated.

In June, the Department of Ecology convened a Rural Water Supply Task Force in an attempt to reach consensus around these issues. The group met throughout the summer. CELP leaders along with tribal representatives engaged in the process, proposing balanced solutions while also calling attention to the real problem: water scarcity and the increasing problems associated with climate change.

Sadly, Ecology leaders kicked off the meetings by lamenting the loss of their ability to re-allocate instream flows to out-of-stream uses, an authority Ecology thought it possessed prior to the Swinomish decision.  This, Ecology suggested, is the “problem” that the group needed to solve. They also indicated their belief that it is Ecology’s duty to guarantee domestic water supplies for all future users.  User groups, for their part, attacked the decision and called for more regulatory flexibility and a new management scheme which would place a greater emphasis on economic rather than environmental needs.

Tribes and CELP leaders presented a different perspective, rejecting the call for more loopholes and exceptions. We continued to remind the group that water is a finite resource and we can no longer afford to put our collective heads in the sand. Appropriate, water-for-water mitigation is needed. We promoted programs in Kittitas and Dungeness Counties where local governments have struck a balance between careful water management and the desire to allow some growth.

Not surprisingly, this honest exchange of views did not result in a consensus around rural water supply policies. As of this writing, Ecology plans to prepare a final report summarizing the various ideas and perspectives presented by stakeholders. Most agree that it is very likely that, while this group failed to resolve the issue, the legislature will take it up again. Stay tuned.

Bruce Wishart of Wishart Public Affairs serves as CELP’s Legislative Director and represents CELP before the state legislature and the Department of Ecology.    


Inseparable: Land Use and Water Availability

By Patrick Williams, Attorney at Law

Land use and water availability are inextricably intertwined throughout the West and Washington is no exception. Here in Washington, this connection is causing difficulties for local county officials and the Department of Ecology.  County officials are responsible for approving building permits and subdivision plans for new development.  In a 2011 Washington State Supreme Court decision, Kittitas County v. Eastern Washington Growth Management Hearings Board, the Court ruled that the Growth Management Act (GMA) requires counties to protect water resources.  The Court also ruled that when counties approve land use permits, they must make water availability determinations that are consistent with water resources laws.   Water availability means more than simply determining whether a well can physically supply water. Counties throughout Washington may not issue land use permits if water is not legally available to supply the project.

Because Washington follows the prior appropriation system for water management, people with senior water rights are entitled to protection from junior or newer water uses. This is true whether the older right is for irrigation purposes or for instream flows designed to protect fish and natural river ecosystems.  This is also true for permit-exempt wells, which are commonly used to supply water for rural development.  Therefore, when county officials are asked to approve water supply for a new development, they must ensure that the new water use will not utilize water that is already allocated to a senior water use, including instream flows.

This raises several problems.  First, Washington’s waters are fully allocated in many watersheds, due to demands by municipalities, irrigators, and industries along with instream flow rules and tribal treaty rights to water for fisheries.  County land use approvals that approve water supply that is otherwise appropriated can lead to liability issues.  Most counties do not have the resources or technical expertise to assess water supply availability.  The Court in Kittitas recognized this and noted that Ecology should assist the counties in assessing whether water is legally available.  The question then becomes: how will this process work?

The Kittitas decision spurred CELP, assisted by Earthjustice, to ask Ecology to provide guidance to counties regarding water resources law and implementation.   CELP’s May 2012 letter to Ecology laid out a framework for step-by-step review of the status of water resources.   Ecology did draft and circulate proposed guidance in October 2013, but that document failed to recognize some basic principles of water law, including hydraulic continuity.   The draft guidance was heavily criticized by CELP, tribes and other parties.

In December 2013, five legislators sent a letter to Governor Inslee asking that Ecology address legal issues relating to water supply.  In response, Ecology established two workgroups.  The “Rural Water Supply” workgroup is discussed elsewhere in this issue of WaterWatch.   Of significance here, Ecology also initiated the Water Availability Guidance for Counties Workgroup.  Ecology’s goal is to work with counties and interested stakeholders on how to help counties with duties to protect water resource consistent with Water Code requirements.[1]  The workgroup is open to the public and CELP is attending, with county officials comprising the majority of those in attendance.

The first meeting was held in Olympia on September 11.  While Ecology’s intent to provide clear guidance to the counties on water resources law is laudable, the execution fell flat.  The initial meeting was intended to establish goals and outcomes for the workgroup, but most of the meeting was spent discussing which stakeholders should be at the table.  Beyond this, many county officials attended the workgroup in the hope of getting basic advice about how to address the land use water availability question. Unfortunately Ecology did not provide assistance for this issue.  So what are the counties to do?

CELP’s Proposal:

At the meeting CELP distributed its May 2012 letter that outlines how county officials should address water availability in the land use context when an applicant proposes using a permit-exempt well.   Based on court decisions and the water code, counties should follow these steps:

  • First, it is important to note that the law puts the burden on the applicant for a building or subdivision permit to demonstrate that water supply is adequate.  This is consistent with water code requirements that applicants for water rights have the burden of meeting statutory tests regarding availability, impairment and the public interest.
  • The applicant for a land use permit must first show there is no closure of groundwater. If groundwater is closed to further withdrawals, then the permit may be approved, but only if full mitigation for the water use is demonstrated.
  • If there are surface water closures, then the building applicant must show there is no hydraulic connection between the groundwater proposed for the development and the surface water closed to new appropriations.
  • If there is an instream flow water right at issue, the applicant must show that the flows are met throughout the year, every year and the applicant’s water use will not impact the flows.
  • If the instream flows are not being met the applicant must fully mitigate any likely impact unless there is reliable science proving there is no connection between the groundwater and the surface water.

The bottom line is that neither the counties nor Ecology can allow for new developments to take water already appropriated for instream flows or existing and senior water users.  The prudent way forward is to identify those areas within counties where groundwater is connected with surface waters for which instream flows are established, or where groundwater is closed to further withdrawals.  In those situations, counties should presume that water is not legally available, and issue permits only where full mitigation is offered.  Ecology can assist the counties in identifying these areas by providing hydrologic reports and information.  This should be the first step in providing clarity to counties to approve land use decisions that require water supply.

Only with real and substantive mitigation will counties be able to approve new rural development that requires water supply.  It is time for the state to make a real and sustained effort at creating a reliable and protective mitigation program; one that protects instream flows and allows for reasonable rural development.

About the Author:  Patrick Williams is principle in the Patrick Williams Law Firm in Seattle, where he represents clients on public interest water and environmental law matters.  He served as CELP’s staff attorney between 2006 and 2009 and represents CELP in the County Water Guidance Workgroup.  You can reach him at Patrick@patrickwilliamslaw.com and 206-724-2282.


[1] Ecology’s Water Availability Guidance for Counties Website, http://www.ecy.wa.gov/programs/wr/wrac/rwss-wag.html.


Religious & Indigenous Leaders to Obama & Harper: Modernize the Columbia River Treaty

Yesterday fourteen indigenous and religious leaders in the Columbia River Basin, including representatives of all Native American Tribes and First Nations,  sent a letter to President Obama and Prime Minister Harper.  The letter endorses the Declaration on Modernizing the Columbia River Treaty and asks the two national executives to move forward on the treaty update process.  Read more about the letter, the Declaration, and CELP’s Ethics & Treaty Project here.

Today’s Yakima Herald story reports on these events, including quotes from CELP’s board president John Osborn and Spokane Tribe Councilmember Matt Wynne.

Photo:  Fishing at Kettle Falls (UW Special Collections)


Washington Water Watch (August 2014 Edition)

Did you miss our August Edition of Washington Water Watch in your inbox?

Click here to view the PDF version of our newsletter.

Don’t miss out on our update on the protection of Similkameen Falls and an excellent recap of the Columbia River Treaty Multifaith Prayer Vigils!