Check out our May edition of Washington Water Watch – we discuss the EPA’s new Clean Water Rule, a report released in January 2015 by Earth Economics about Outdoor Recreation in WA, and give updates on litigation and CELP in the News.
CELP and partners returned to court on Friday, April 3, to challenge a water right that could reduce water flowing in Similkameen Falls, in north central Washington, to a trickle. The Falls, located on the Similkameen River just downstream of Enloe dam, are a popular scenic attraction and have important cultural and ecological values.
Okanogan Public Utility District (OPUD) purchased Enloe dam in 1953, but has not generated power since 1958. After two failed attempts to re-electrify the dam in the 1990’s, OPUD obtained a federal energy license in 2013. CELP challenged the water quality certification and won a decision that the proposal to divert 90-99% of the natural flows around the waterfalls lacked scientific foundation.
After oral argument on the water right appeal, Judge Gary Tabor of Thurston Superior Court ruled from the bench in favor of the Department of Ecology and OPUD. For CELP, the courtroom saga continues a 10-year effort to restore and protect the Similkameen River, including opposition to two new dam proposals, the Shankers Bend and the Fortis BC projects, that are sidelined for the time being.
Search is on for a lead agency to remove Enloe dam
One very positive development has occurred in the face of continued litigation and local ratepayer opposition to the project’s $50 million price tag. On April 6, OPUD Commissioners passed a resolution indicating willingness to work with CELP and its conservation partners in finding a lead agency for Enloe dam removal. Both the Lower Similkameen River Band in B.C. and the Confederated Colville Tribes have endorsed the concept of dam removal.
OPUD is exploring all options, including its original plan to re-energize Enloe. However, the case in favor of dam removal is persuasive:
- Re-energizing the dam will be a major money-loser for local ratepayers;
- De-watering Similkameen Falls is illegal, and CELP’s water quality challenge creates significant uncertainty about the amount of water available for power generation; and
- Removing Enloe dam will clear the way for salmon and other species to access 300-plus miles of river and stream habitat, a huge opportunity for both fish and people.
The ongoing legal challenge
CELP, American Whitewater and North Cascades Conservation Council have challenged a decision by the Department of Ecology to issue a water right to the Okanogan PUD for renewed operation of Enloe dam. The water right appeal raises two issues. First, as Andrea Rodgers of the Western Environmental Law Center, puts it: “Ecology is required to determine whether granting a water right will harm the public interest before issuing a permit. Here, they propose to defer that decision until after the project is built, violating the four-test requirement for allocation of public water resources.”
Attorney Rachael Paschal Osborn described the second argument in the case: “The new water right for the dam fails to protect instream flows as adopted into the Similkameen River rule. This directly contradicts a 2013 Supreme Court decision regarding the Skagit River, holding that these rules function as ‘water rights for the river’ and may be violated only in the most narrow of circumstances.
Economic studies show that re-energizing Enloe Dam doesn’t make financial sense as is, and will be even more expensive if minimum flow releases are increased. OPUD, having spent $12 million to obtain a federal energy license for the project, is placing ratepayer dollars at substantial risk. Depending on the outcome of the aesthetic flow studies to protect Similkameen Falls, OPUD may have far less water to divert for hydropower than originally permitted.
The river advocacy groups in the legal challenge are all members of the Hydropower Reform Coalition, and are represented by public interest attorneys Andrea Rodgers of the Western Environmental Law Center and Rachael Paschal Osborn and Dan Von Seggern of CELP.
Don’t miss our March edition of Washington Water Watch!
Click here to see the PDF version of our newsletter.
This month you’ll find articles about CELP’s recent victory in our Spokane River PCB challenge, the positive outcome of our Columbia River challenge, updates on other water issues and the Legislative session, an introduction to our new Development and Outreach Coordinator, and more.
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Dept of Ecology responds to lawsuit, re-issues Trios/Easterday water right with river flow protections
Seattle – Today conservationists announced they will not appeal a revised water right issued by Washington Department of Ecology (Ecology) to Trios Health/Easterday Farms after Ecology amended the water right to protect Columbia River flows. The earlier legal challenge of the water right focused on Ecology’s practice of issuing new water rights that deplete rivers by using “out-of-kind mitigation.”
“We are pleased that Ecology has abandoned ‘out-of-kind’ mitigation for this water right,” said Rachael Paschal Osborn, senior policy analyst for the Center for Environmental Law & Policy (CELP). “Out-of-kind mitigation is illegal. It threatens to de-water rivers statewide.”
The water right will irrigate 2000-3000 acres of land owned by Easterday Farms. Kennewick General Hospital (now Trios Health) received title to the lands as a gift in 1980, but the lands lacked irrigation water. Trios sold the land to Easterday Farms, contingent upon receiving a water right from the state.
In 2013, Ecology issued the water right, but without the instream flow protections routinely required for the Columbia River. Rather than providing “bucket-for-bucket” mitigation to protect Columbia River flows, Ecology instead required a $6 million payment by Trios Health/Easterday to pay for habitat improvements in the Yakima and other watersheds. The Okanogan Wilderness League and CELP appealed (see “background” section below), and the Pollution Control Hearings Board directed that the matter be sent to trial, requiring Ecology to prove that out-of-kind mitigation would actually offset the impacts to Columbia River flows. Rather than going to trial, Ecology issued a new water right with instream flow and in-kind mitigation requirements.
“Rivers in Washington State, including the Columbia River, are already in trouble from too many water rights and withdrawals,” said Osborn. “An honest appraisal of out-of-kind mitigation would show that habitat projects, whatever their merit, still fail to protect instream values, including fish, navigation, recreation, and scenic beauty.”
The new 2015 water right is conditioned on the Columbia River instream flow rule. In addition, the $6 million to be paid by Easterday Farms will be used to purchase and retire existing water rights to directly offset impacts.
“It is not appropriate to exchange out-of-kind mitigation for water. You can anchor a tree to the bottom of the river, but it won’t help if the river is dry,” added Osborn. “If Ecology issues similar water rights in the future, CELP will have no choice to but to challenge.”
The OWL/CELP 2013 appeal of the Kennewick Hospital/Trios/Easterday water right was based on the following issues:
– The water right would deplete flows in the impacted stretch of the Columbia River, violating the state’s own instream flow rule adopted to protect salmon migration.
– The mitigation projects generally would have had a short life-span, but the removal of water from the Columbia River would be perpetual and unending.
– The out-of-kind mitigation projects in the original water right would have been completed anyway, funded through federal and state programs to recover salmon. This has turned out to be true – most of the one dozen habitat projects have been constructed.
– Washington water law does not authorize the state’s water agency to give away state waters in exchange for money or non-water mitigation. There is growing public concern about financial mismanagement within the Department of Ecology, especially relating to the Office of the Columbia River that coordinated the Trios/Easterday water right.
CELP has worked to protect Columbia River flows for the past two decades. In 2004 the National Academy of Sciences published its analysis on Columbia River flows, warning Washington State that water rights, water diversions for irrigated agriculture, flow adjustment for hydropower generation, and warming water temperatures from climate change threaten the survival of salmon and other fish and wildlife values.
Links to more background information:
CELP, Columbia River Vision, (Nov. 2000)
National Academies of Science, Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival
In Spokane, the U.S. District Court Judge Barbara Rothstein issued a decision today in the matter of Sierra Club and Center for Environmental Law & Policy (CELP) versus U.S. Environmental Protection Agency (EPA). The Court ruled that EPA abused its discretion in agreeing to allow a polluter-dominated committee process substitute for a cleanup plan for Spokane River PCBs. Sierra Club & CELP filed the citizen lawsuit against EPA in 2011. The Spokane Tribe of Indians intervened in support of the lawsuit, and the Department of Ecology, Spokane County and Kaiser intervened to defend EPA.
“Today is a good day for the Spokane River,” said Matt Wynne, Spokane Tribal Councilman and Chairman of Upper Columbia United Tribes. “Judge Rothstein confirmed that delay in cleaning up the River is unacceptable, and found that deadlines and pollution limits are necessary.”
In 2011, the Washington Department of Ecology reversed course and abandoned efforts to adopt a PCB cleanup plan, largely because of political opposition by Spokane River polluters, who would be required to reduce PCBs in effluent by up to 99% to meet both Washington State and Spokane Tribe water quality standards. These polluters include Inland Empire Paper, Kaiser, and the Liberty Lake, Spokane County, and City of Spokane sewage treatment plants. Instead, Ecology formed the Spokane River Toxics Task Force and required the polluters to participate, but also gave them control over the goals and activities of the Task Force.
“The Spokane River is Washington’s most polluted river when it comes to PCBs,” said Rachael Osborn, senior policy adviser for the CELP and Spokane River Project Coordinator for Sierra Club’s Upper Columbia River Group. “Obtaining a PCB cleanup plan is essential to public health and especially important for people who eat fish from the Spokane River, including immigrant populations and Spokane Tribal members.”
“After years of delay on the part of the agencies, the Court today rejected the state’s ‘fox in chicken coop’ strategy of putting the polluters in charge of a cleanup plan,” Osborn continued, “Instead, the Court has ruled that a real cleanup plan, prepared within a reasonable timeframe, is required.”
THE FEDERAL COURT DECISION:
Today’s federal court decision finds that the Task Force is not a proper substitute for a Clean Water Act mandated TMDL, stating (at page 21):
There comes a point at which continual delay of a prioritized TMDL and detours to illusory alternatives ripen into a constructive submission that no action will be taken. With the Task Force as presently proposed, Ecology is coming dangerously close to such a point, and with EPA’s support. Accordingly, the Court finds that the EPA acted contrary to law in finding the Task Force, as it is currently comprised and described, a suitable “alternative” to the TMDL.
The court decision also dictates next steps, ordering EPA to report back to the Court within 120 days with a specific plan to complete a PCB TMDL (at page 22):
. . . EPA shall work with Ecology to create a definite schedule with concrete goals, including: clear statements on how the Task Force will assist in creating a PCB TMDL in the Spokane River by reducing scientific uncertainty; quantifiable metrics to measure progress toward that goal; regular checkpoints at which Ecology and the EPA will evaluate progress; a reasonable end date, at which time Ecology will finalize and submit the TMDL for the EPA’s approval or disapproval; and firm commitments to reduce PCB production from known sources in the interim.
ABOUT PCBs and TMDLs:
PCBs are a group of industrial compounds associated with liver dysfunction and cancer, and are now banned in the United States. Washington State recognizes that the Spokane River is impaired for PCBs. The Department of Ecology issues pollution permits (known as NPDES permits) to companies (such as Inland Empire Paper and Kaiser) and municipalities, allowing them to pollute the Spokane River up to certain thresholds.
The federal Clean Water Act requires a clean-up plan (called a TMDL or “total maximum daily load”) before issuing any permits that would add more PCBs to the Spokane River. The Washington Department of Ecology is attempting to side-step the law by not preparing a PCB cleanup plan, and issuing NPDES permits anyway.
Sierra Club and CELP are also defending their victory in their 2011 challenge to the pollution discharge permit issues to Spokane County’s new sewage treatment plant. In 2013, the Pollution Control Hearing Board (PCHB) ruled that the “state of the art” plant was discharging PCBs and had the potential to violate state and tribal water quality standards. The PCHB directed Ecology to issue a new permit with appropriate pollution limits. Instead of issuing such permit, Ecology and Spokane County appealed the matter to Thurston County Superior Court. That court affirmed the PCHB in the fall of 2014. Ecology and the County recently appealed the matter to the Court of Appeals. The County continues to operate the plant, and to discharge PCBs into the Spokane River.
Sierra Club and CELP are represented by Richard Smith of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation.
- Spokane River Fish Advisory – PCB Warning
Center for Environmental Law and Policy (CELP), is seeking candidates for a full-time Staff Attorney. This position will focus on agency advocacy, public interest litigation, policy and legislative work, public outreach, and administrative support. Please see full job description here.
To apply please e-mail cover letter, resume, writing sample (not more than 10 pages), transcript, and references to Trish Rolfe at firstname.lastname@example.org by February 15, 2015.
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.
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
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.
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. 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?
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.
 Ecology’s Water Availability Guidance for Counties Website, http://www.ecy.wa.gov/programs/wr/wrac/rwss-wag.html.