Dive Into the History of Water Law

In a case that continued from the 1960 through the 1990’s, ranchers claimed priority water right for Sinking Creek where they watered their cattle.  They believed that the farmers pumping water for irrigation were depleting the stream and filed numerous complaints with the Department of Ecology. 

Ecology eventually determined that there was indeed a connection between the groundwater withdrawals and the diminished flow of the creek.  Ecology decided that the ranchers’ water rights were superior to those of the irrigation farmers. It issued cease and desist orders prohibiting the farmers from making any further groundwater withdrawals.

The farmers appealed to the Pollution Control Hearings Board (PCHB), arguing that Ecology overstepped its authority and had denied them the full process of the law. PCHB stayed the cease and desist orders; the case went to Superior Count then to the Supreme Court.

Two consolidated cases, one of which  involves four consolidated cases, present issues arising from the Department of Ecology’s denial of applications for groundwater appropriation permits on the basis that the groundwater sources are in hydraulic continuity with surface water sources and further appropriations are foreclosed under the criteria of RCW 90.03.290.  In the five individual cases before this court, the Pollution Control Hearings Board upheld Ecology’s denial of the groundwater applications.

The court upheld Ecology’s denial of the groundwater permit applications. The court also ruled:

• Ecology must determine impairment on a case-by-case basis.
• Continuity between groundwater and a stream with unmet instream flows is not by itself a sufficient reason to determine impairment to minimum instream flows.
• “A minimum flow is an appropriation subject to the same protection from subsequent appropriators as other water rights.”
• In stating that the law doesn’t allow for “de minimis” impairment of existing rights, the court established that “any effect on the flow or level of the surface water” in closed streams would mean impairment.

The decision established that de minimis impacts constitute impairment, no matter whether they are observable or significant.

In January of 2001,  The United States and twenty-one Washington tribes, asked the U.S. District Court to find that the state has a treaty-based duty to preserve fish runs and habitat, and sought to compel the state to repair or replace culverts that impede salmon migration.

in 2007, the district court held that while culverts impeding fish migration are not the only factor diminishing their upstream habitat, the state’s building and maintaining of culverts that impede salmon migration had diminished the size of salmon runs and thereby violated its obligation under treaties

In 2013, the district court issued an injunction ordering the state to significantly increase the effort for removing state-owned culverts and to replace the state-owned culverts that have the greatest adverse impact on the fish habitat by 2030.

Washington state attorney general Bob Ferguson wanted the Court to reconsider the decision that required his state redo the culvert system under its roads to allow for the safe migration of salmon. In 2018 the case went before the Supreme Court who affirmed the ruling. The decision meant that the Order requiring the culverts be removed or repaired would stand and fish must have access to the habitat which they need to recover and thrive. This decision was a significant victory for Tribal treaty rights, in that the right to fish is now understood to include the right to habitat suitable for fish production. (Read more on our blog here)

In Department of Ecology v. Campbell & Gwinn, the Court overturned a Yakima County Superior Court decision and determined that the exempt well provision did not allow the developer in this case, Campbell & Gwinn, to drill multiple exempt wells for a 20-lot subdivision because the wells would collectively withdraw more than the specified limit of 5,000 gallons per day.

As clarified by the Court, the exempt well provision is intended to relieve small-scale domestic (residential) water users from permitting requirements and is limited to 5,000 gallons a day, whether intended for single or group domestic uses.

An essential element of the Court’s decision was its conclusion that wells drilled by a developer to service a subdivision constitute a single “group domestic use” rather than a series of individual uses.

According to the Court, a developer building a subdivision qualifies for one exemption for multiple residences and may not drill multiple wells for a single development when those wells will cumulatively withdraw more than 5,000 gallons per day.

In 2001, Ecology adopted an instream flow rule for the Skagit Basin. In 2006, Ecology amended the Skagit Basin rule to establish reservations of water. The reservations provided a legal source of water for rural homes and businesses to use when the Skagit River falls below the instream flow levels. Ecology justified the reservation by using “overriding considerations of the public interest” (OCPI).

The Swinomish Indian Tribal Community appealed the rule revision, arguing that the department acted beyond its statutory authority by applying OCPI to create reservations and allowing aggregate uses of water to impair previously established instream flows. In its decision, the court ruled in favor of the Tribe and: 

• Invalidated the Skagit rule revision that had a reservation of water for future uses.
• Established that Ecology could not use OCPI to justify water use that impairs existing instream flows.
• Clarified that OCPI could not be used to justify allocating water for domestic use.
• Stated that OCPI is a very narrow exception and requires extraordinary circumstances before the minimum flow water right can be impaired.

In 2016 a Washington State Supreme Court decision was issued in Whatcom County vs. Hirst, Futurewise, et al.  that stated that in Washington State, under the Growth Management Act (GMA), counties are required to complete comprehensive growth planning that protects groundwater and surface water resources. The county must receive evidence of an adequate water supply from applicants for building permits or subdivisions before allowing the development.

Under contention was whether Whatcom county could allow residents to withdraw water from permit-exempt wells. Ecology’s instream flow rule for the Nooksack River closed most streams to new water right permits, but allowed permit- exempt wells in most of the basin. The county (and Ecology in an amicus brief) argued that Whatcom County sufficiently protected water resources by following the water resource management rule.

The Court ruled that:

• 1. Whatcom County failed to comply with GMA’s requirements to protect water resources.
  2. The county has an independent obligation to ensure that new permit-exempt uses do not impair instream flows and closures when making water availability determinations.

• 1. Counties cannot rely on the exclusion of permit-exempt groundwater from regulation in the instream flow rule
  2. Counties must make an independent decision about legal water availability.

While the Hirst Decision was specific to Whatcom County, the precedent was interpreted to apply to counties subject to the GMA. Some counties subject to the GMA reacted by refusing to issue building permits or placing the burden for proving water availability fully on the applicant.

The Hirst  Decision assigned authority for making water availability decisions to counties who felt that was outside the scope of their knowledge or ability.

Senate Bill 6091 is deemed the “Hirst Fix” because it changed  portions of the Revised Code of Washington (“RCW”) to allow counties to rely on Ecology’s determinations regarding the legal availability of water to issue building permits, as was done prior to the Hirst Decision.

However, other additions to the bill intended to make it easier to issue permits for growth effectively disempowered the original court decision to put water availability as the number one consideration.

Additional Cases

2020’s  Okanogan County Vs. WA Dept of Ecology

2010’s

• Whatcom County vs. Hirst, Futurewise, et al (2016)
• Enloe Dam – Center for Environmental Law & Policy, et al.. Appellants v. Dept of Ecology, et al. Respondents (2016)
• Sara Foster v. Ecology, City of Yelm, WA PCHB (2015)
• Cornelius, et.al. v. Dept. of Ecology,et. al. Supreme Court No. 88317-3 (2015)
• Swinomish Indian Tribal Community v Washington State Department of Ecology – Supreme Court of the State of Washington (2013)
• Washington State Court of Appeals, Division II – Squaxin Island Tribe v. Ecology (2013)
• Graysmarsh LLC. v. State of Washington DOE et al Court of Appeals Division II No. 41507-1-II (2011)
• JZ Knight v. City of Yelm et al. Supreme Court No. 84831-9 (2011)
  • JZ Knight v. City of Yelm et al. Supreme Court No. 84831-9 (2011) – dissent
• Kittitas County et al v. Eastern Washington Growth Management Hearings Board et al 172 Wash.2d 144, 256 P.3d 1193 (2011)
• Five Corners Family Farmers, et al. v. Washington Department of Ecology Supreme Court No.84632-4 (2011)
• United States, Plaintiff: Lummi Nation, Plaintiff-Intervener: vs. Washington Department of Ecology, et al. Supreme Court No. C01-0047Z (2010)
  • Lummi Indian Nation v. State of Washington Dep’t of Revenue No. 81809-6 (2010)
• Don Fitzpatrick v. Okanogan County and State of Washington Supreme Court No. 81527-8 (2010)
  • Don Fitzpatrick v. Okanogan County and State of Washington Supreme Court No. 81527-8 (2010) – dissent

2000’s

• Pacific Land Partners LLC v. State of Washington DOE (2009)
• Department of Ecology v. City of Union Gap and Ahtanum Ridge Business Park, LLC (2008)
• Michael Fort v. State of Washington, Department of Ecology (2006)
• Motley-Motley, Inc. v. Department of Ecology (2005)
• Port of Seattle v. PCHB (2004)
• City of West Richland, et al v. Department 22648-4-III (2003)
• Kim v. Pollution Control Hearings Board, 161, 115 Wn. App. 157 (2003)
• PUD Dist. 1 of Pend Oreille v. Department of Ecology, 70372-8 (2002) – Also known as Sullivan Creek
• Department of Ecology v. Campbell & Gwinn et al., 70279-9 (2002)
• Postema, ET AL., Appellants, v. The PCHB, ET AL., Respondents. 142 Wn.2d 68 (2000)
  • Postema v. PCHB, et al., Citation pending, (2000) – dissent

1990’s

• D. Merrill Co. v. Pollution Bd., 137 Wn.2d 118, 969 P.2d 459 (1999)
• Department of Ecology v. Theodoratus, 135 Wn.2d 582, 957 P.2d 1241 (1998)
• Hubbard v. Department of Ecology, 86 Wn. App. 119, 936 P.2d 27 (1997)
• Department of Ecology v. Acquavella, 131 Wn.2d 746, 935 P.2d 595 (1997)– Also known as Acquavella 3
• Okanogan Wilderness v. Town of Twisp, 133 Wn.2d 769, 947 P.2d 732 (1997)
• Hillis v. Department of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997)
• PUD NO. 1 of Jefferson County et al. v. Washington Department of Ecology, et al. (1994)
• Rettkowski v. Department of Ecology, 219 122 Wn.2d 219, 858 P.2d 232 (1993)– Also known as as Sinking Creek
  • Supreme Court Order Changing Opinion(1993)
• Department of Ecology v. Yakima Reservation Irrig. Dist., 121 Wn.2d 257, 850 P.2d 1306 (1993)– Also known as Acquavella 2
• PUD No.1 of Jefferson County et al v. Department of Ecology et al121 Wash.2.d 179, 849 P.2d 646 (1993)
• Department of Ecology v. Grimes, 121 Wn.2d 459, 852 P.2d 1044 (1993)
• Department of Ecology v. PUD 1, 121 Wn.2d 179, 849 P.2d 646 (1993)
• Department of Ecology v. Bureau of Reclamation, 118 Wn.2d 761, 827 P.2d 275 (1992)
• Neubert v. Yakima-Tieton Irrig., 117 Wn.2d 232, 814 P.2d 199 (1991)

1980’s

• Dodge v. Ellensburg Water Co., 46 Wn. App. 77, 729 P.2d 631 (1986)
• Department of Ecology v. Adsit, 103 Wn.2d 698, 694 P.2d 1065 (1985)
• Department of Ecology v. Abbott, 103 Wn.2d 686, 694 P.2d 1071 (1985)
• U.S. v. Anderson (Chamokane Creek) at the Ninth Circuit Court of Appeals (1984)
• Sunnyside Valley Irrigation District v. Department of Ecology, 100 Wn.2d 651, 674 P.2d 160 (1983) – Also known as Acquavella 1
• Schuh v. Department of Ecology, 100 Wn.2d 180, 667 P.2d 64 (1983)
• Colville Confederated Tribes, v. Boyd WALTON, Jr., et ux, et al., and State of Washington, United States Court of Appeals for the Ninth Circuit (1981)

1970’s

• Peterson v. Department of Ecology, 92 Wn.2d 306, 596 P.2d 285 (1979)
• McLeary v. Dep’t of Game, 91 Wn.2d 647, 591 P.2d 778 (1979)
• Stempel v. Dep’t. of Water Resources, 82 Wn.2d 109, 508 P.2d 166 (1973)