WA State Legislature Passes Flawed “Hirst Fix”

by Dan Von Seggern

Our state legislature began this year’s session by passing a bill to remove the 2016 Whatcom County v. Western Washington Growth Management Hearings Board (“Hirst”) decision’s protections for groundwater and streamflows. Hirst reaffirmed existing law and required that counties ensure water is both physically and legally available before granting building permits.   This common-sense rule provided a critical check on withdrawals of groundwater that affect streams and rivers, and harm fish habitat.  Unrestricted groundwater withdrawals can impair the rights of senior water holders, including users of existing wells who are now seeing their wells go dry.  Worse yet, the bill takes a step towards reversing the Foster v. Ecology decision, which requires that impacts to streams be mitigated with replacement water, rather than with non-water (“out-of-kind”) habitat restoration projects.

Concerned that having to show that water was actually available could slow development in rural areas, counties, the building industry, and property rights groups pressured the Legislature to find a “fix.” On January 18, the Legislature passed a bill (ESSB 6091) that allows counties to approve building permits that rely on permit-exempt wells.

  • In WRIAs where Ecology has adopted an instream flow rule that specifically addresses permit-exempt wells (for example, WRIA 18, the Dungeness River), compliance with the applicable rule is sufficient to show water availability for a building permit.
  • Where Ecology has adopted a rule that does not speak to permit-exempt wells, a plan to restore and enhance streamflows is to be generated. In WRIAs that created watershed plans under the 1998 Watershed Act, the bill requires that these plans be updated to include projects to “measure, protect, and enhance streamflows,”   and to offset impacts of permit-exempt wells.
  • If no watershed plan was previously developed, the bill directs formation of “watershed restoration and enhancement committees” composed of stakeholders. These committees are heavily weighted towards stakeholders who have an interest in developing water, rather than preserving the resource, and CELP is concerned that they would not have adequate incentives to truly restore and enhance the streamflows.
  • In watersheds where Ecology has not yet adopted an instream flow rule, an applicant need only show that water is physically present (in other words, there is no requirement to mitigate or compensate for water use).   This is the situation in about half the state’s watersheds, including some that are experiencing high growth pressures such as the Cowlitz River (WRIA 26).

ESSB 6091 stresses a “watershed restoration and enhancement” approach, rather than requiring that water use from permit-exempt wells be mitigated.  While the goal of protecting and enhancing streamflow is a worthy one, this bill has significant flaws and will not provide adequate protection for streams, fish, or people who rely on them.  Development is essentially unrestricted in most areas until the new plans are completed (2019 – 2021).  The damage to streams will likely be done before any regulations are established.

ESSB 6091 also undermines mitigation of future water use by authorizing “out-of-kind” mitigation projects (such as streambank restoration or addition of large woody debris to a river channel; by definition, such projects do not provide replacement water) to compensate for new water uses, rather than requiring replacement water to maintain streamflows.  CELP believes that out-of-kind projects will become the path of least resistance in compensating for water use, and streamflows will inevitably be impaired.  Even the best habitat is of little use if there is insufficient water in the stream.

CELP is especially disappointed that ESSB 6091 lacks any metering provision, or any other method to determine how much water is actually used. Without metering, compliance with the limits in RCW 90.44.050 or with any limits set by the respective watershed committees cannot be verified, and there will be no way to know whether the impact of permit-exempt wells is actually being “offset.”   Because quantities cannot be verified, water use under this scheme is in practice unlimited.  Simply relying on users not to exceed allowable limits is poor policy and could make much of the watershed protections plans meaningless.

ESSB 6091 requires Ecology to conduct a pilot study of “the overall feasibility” of metering groundwater withdrawals (including permit-exempt wells) in the Dungeness (WRIA 18) and Kittitas county (WRIA 39) areas.  But no pilot project is needed.  Ecology’s rules in these areas already require that new permit-exempt wells be metered, and metering has already proven feasible. Rather than directing Ecology to waste time and resources on these studies, a better approach would be to require metering on all new permit-exempt wells, so that the data needed to ensure that streamflow impacts are compensated for can be gathered.

Finally, ESSB 6091 establishes a legislative “task force” with the mission of identifying changes in law to effectively overturn the Supreme Court’s 2015 Foster v. Ecology decision.  Foster held that water use that impairs an instream flow or other senior water right must be mitigated by providing substitute water at an appropriate place and time.  This provided important protections for salmon, which depend on water being present in streams at the time it is needed for migration, spawning, and rearing.  The bill authorizes a list of pilot projects that appear intended to demonstrate out-of-time, out-of -place, or out-of-kind mitigation.  CELP is concerned that this provision is designed to reach a preordained conclusion that out-of-kind mitigation is acceptable, and to pave the way for its broader use.  The consequences to Washington’s rivers and the fish that depend on them may be disastrous.