The Unkindest Mitigation – how Ecology’s new water impairment ideas will hurt rivers and fish

By Rachael Paschal Osborn

There’s a new set of euphemisms circulating at Ecology’s Water Resource Program. Terms like “redefining impairment” and “flexible mitigation authority” are the latest linguistic gems. Lift the lid, and you find proposals to grant new water rights in exchange for out-of-kind mitigation, that is, trading water for habitat improvement projects, real estate easements, large woody debris, and of course, money. These proposals are under discussion at the agency, in the courts, and likely soon, the Washington State Legislature.

The problem is age-old. Washington’s rivers are water scarce, particularly during the summer months, when rainfall is low, weather is hot, and native salmon and trout species need abundant, clean, cold water to survive. Subtract the hundreds of thousands of existing water rights and permit-exempt wells that already pump water out of our ecosystems, and it is tough to find a river or aquifer that has much water available to supply new development.

Fortunately, Washington has strong instream flow laws that require Ecology to protect the water flowing in rivers, at least what’s left. In 2013, in the case Swinomish Tribe v. Ecology, the Supreme Court held that instream flow rights are just like out-of-stream water rights, entitled to the same protections afforded to farms or cities. Regrettably, Ecology believes it has a duty to guarantee water supply for new development, and that the Swinomish ruling is a problem and must be overcome.

Because protecting instream flow constrains the issuance of new water rights, Ecology began several years ago to allow water right mitigation. It started off a little rocky – some readers may remember the Rube Goldberg-esque mitigation plan for the Battle Mountain Goldmine. But eventually the right ideas settled in. If a project proponent could offer water in exchange for a new right – by retiring an existing right, or obtaining water from a water bank – then the answer might be ‘yes’ rather than ‘no.’ Properly implemented, these are not bad ideas.

But, water-for-water mitigation can be difficult to come by, or expensive. So, to help out would-be water users, Ecology invented a new idea: “out-of-kind mitigation.” It first appeared in Water Resource Program Policy No. POL-2035 (Evaluating Mitigation Plans) adopted in February 2013.

POL-2035 identifies a mitigation hierarchy. First, mitigation for a water right should be in-kind, that is, a water for water trade. Ideally, the replacement water should be in the same place at the same time as the water that’s being used. But, if that’s not possible, then replacement water could be less than perfectly matched to time and place of impact.

And if that’s not possible, then replacement water could be something other than water, i.e., out-of-kind mitigation. POL-2035 defines out-of-kind mitigation as “making water quality or habitat improvements, removing fish barriers, or providing other non-water improvements,” including “monetary investment strategies.”

This is as good as gold for water users. If all you need to do to get a water right is fund a fish project, or buy an easement, or just hand over some money to Ecology, then “bob’s your uncle.”

The problem, of course, is that at some point, there’s no more water. Or so little water that aquatic habitat is destroyed. It doesn’t matter if there’s a tree anchored to the bottom of the river, if the river is dry.

Ecology has already used out-of-kind mitigation to justify new water rights. The City of Yelm water right trades direct impacts to instream flows in the Nisqually River for purchase of a wetland in the Deschutes River basin. An appeal of that decision, Foster v. Yelm, is pending in the Supreme Court.

And then there’s the water right issued to Kennewick Hospital, which promptly re-sold it to Easterday Farms. In exchange for 4,000 acre-feet of water out of the Columbia River, Easterday will pay $140,000 per year over a 43 year period (a total of $6 million) to Ecology’s Office of the Columbia River or OCR. In exchange, OCR is funding eleven habitat projects in several tributaries. These projects include floodplain restoration projects, de-commissioning one road and repairing another, engineering a logjam in the Cle Elum River, etc., etc. OCR is also “scoping” two projects involving fish ladders and irrigation efficiency.

It’s a real smorgasbord. The only thing missing is water.

Okanogan Wilderness League and CELP are challenging the Kennewick/Easterday water right, including whether Ecology has authority to trade out-of-kind mitigation for water rights. The PCHB has scheduled the matter for hearing in May. The legal issue as re-cast by the Board is:

“Does the permit provide adequate conditions [i.e., the out-of-kind mitigation projects] that will retain base flows to preserve the instream flow values enunciated in RCW 90.54.020(3), and to protect such values from impairment, considering cumulative impacts to the flows of the Columbia River given additional appropriations?”

It’s a mouthful. What’s being asked is this: can out-of-kind projects really substitute for instream flows? By their nature, CELP says no. It’s apples and oranges, rolling at warp speed down a slippery slope. But Ecology’s defense is that the out-of-kind projects are so good for fish in the tributaries that the benefits outweigh any harm that might be caused by removing more water from the Columbia River. Stay tuned on this one.

But that’s not all. All this hard thinking about out-of-kind mitigation at the legal level gave Ecology a new idea. They call it “re-defining impairment.” Ecology thinks instream flows are getting too much deference. That dratted 2013 Swinomish case said that instream flow rights must be treated like all other water rights – fully protected from impairment. What if we simply change what impairment means? (But only for instream rights, certainly not for real water users.)

According to Ecology’s recent message to the legislature, re-defining impairment would mean evaluating harm to rivers in terms of lost habitat rather than quantitative water depletion. This, of course, would then justify the use of, you guessed it, out-of-kind mitigation.

We know from experience that wetland and shoreline mitigation projects are often not successful.  (A 2002 evaluation of wetland mitigation found 50% success rate.)  Why Ecology thinks that this type of approach could adequately replace water rights is a true mystery.

We also know that human ingenuity can solve water supply problems. Conservation, cisterns, extension of public supply lines, and water banks are examples of sustainable solutions already in successful use around Washington.

Out-of-kind mitigation is a very unkind approach to solving water problems. There are better ways to take care of our rivers.

Literature

Wetland Mitigation in the United States: Assessing the Success of Mitigation Policies. http://water.epa.gov/lawsregs/guidance/wetlands/upload/2004_10_28_wetlands_ambrose_wetlandmitigationinus.pdf

Washington State Wetland Mitigation Evaluation Study, Phase 1: Compliance https://fortress.wa.gov/ecy/publications/publications/0006016.pdf

Washington State Wetland Mitigation Evaluation Study, Phase 2: Evaluating Success https://fortress.wa.gov/ecy/publications/publications/0206009.pdf

Water Resource Program Policy No. POL-2035, Evaluating Mitigation Plans (February 2013) http://www.ecy.wa.gov/programs/wr/rules/images/pdf/pol2035.pdf

Finding Rural Water Domestic Solutions While Protecting Instream Resources (Final Draft, Nov. 2014) http://www.ecy.wa.gov/programs/wr/wrac/images/pdf/112014-frdws-wpir-finaldraft.pdf