Check out the latest edition of our monthly newsletter, Washington Water Watch. In this month’s issue you’ll find an article on the current water bills in the Washington State legislature, an update on CELP’s recent motion for summary judgment in the Leavenworth National fish hatchery case, an article on the Lyre-Hoko watershed, and a notice about our upcoming Spokane event, Winter Waters.
by CELP Executive Director Trish Rolfe and Government Affairs Specialist Bruce Wishart
Water is a major topic in the legislature again this year, and several bills have been introduced that would undermine or overturn several key Washington Supreme Court water law decisions, including the Hirst decision on permit exempt wells handed down in October. CELP has been busy testifying on these bills in Olympia to ensure protection of Washington’s water resources.
Senate Bills that CELP Opposes: These bills would negatively impact instream flows and salmon.
- SB 5010: Avoiding Ecology Review of Expansion of Agricultural Water Rights as a Result of Claimed Conservation
While we support and encourage water conservation, this bill would bypass a process in existing law to ensure that when a farmer conducts conservation then sells or transfers the water, the water is legally available for the new use. Farmers who wish to do conservation can use the established “Trust Water Rights Program” in current law to avoid relinquishment of the water saved by conservation practices
- SB 5005: Converting an Agricultural Right to a Municipal Right without Ecology Review
Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would avoid that review, allowing relinquished rights to be revived. House companion bill is HB 2084.
- SB 5003: Allowing New Projects to Mine Instream Flows
This bill overturns several recent State Supreme Court decisions on water law, allowing approval of new projects that reduces instream flows necessary to protect endangered salmon. Ecology could use different tools to impair instream flows to support new land use development and other new out of stream projects. This would result in giving a super priority to permit-exempt wells, harming senior water rights holders and instream flows.
- SSB 5002: Requiring Leased Water Rights used as Mitigation to be Replaced by Permanent Water
This bill allows temporary, leased water to be used to mitigate ongoing use of domestic wells.
- SB 5239: Overturning Hirst and Allowing Wells to Harm Instream Flows
Overturns Hirst and allows unmitigated development to harm existing users of water, including instream flows. Completely undermines instream flows, making them subordinate to new wells.
Senate Bill CELP supports with concerns
- SB 5024: Allows Development to Proceed under Hirst under Mitigation Plans
Allows for new development to occur in rural areas without adequate water supply provided the County adopts a mitigation plan. A county is given five years to allow new development before mitigation must be in place. Follows models used successfully in Clallam and Kittitas Counties which allow salmon-friendly development.
House Bills that CELP Opposes. These bills would negatively impact instream flows and salmon.
- 1084 Converting an Agricultural Right to a Municipal Right without Ecology Review
Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would bypass that review, allowing relinquished rights to be revived. Senate Companion bill 5005
- 1348 Concerning the priority in the state water code assigned to various beneficial uses.
Establishes that regardless of priority date, instream flows rules are always junior to the beneficial use of water for irrigation, commercial, industrial, or potable water purposes. Changes water law, and makes Instream flow water rights a lesser water right. Would destroy meaningful protections for instream flows and harm fish and other wildlife.
- 1349 Declaring any minimal cumulative impacts of permit-exempt groundwater wells on water levels to be overwhelmingly offset by state investments in fish habitat improvement projects.
Establishes that permit-exempt groundwater withdrawals are deemed to not impair senior water rights, presumably including instream flow rules, and that the cumulative impact from permit-exempt wells on instream flows are to be “forever fully mitigated.”
Allows for out of kind mitigation for impairment of Instream flows. Makes Instream flow water rights a lesser water right. Will harm fish and wildlife because other habitat improvements are meaningless if there isn’t enough water in the streams for fish. A water right is a right in perpetuity, but habitat improvements are not permanent.
- 1382 Establishing a rebuttable presumption that permit-exempt groundwater withdrawals do not impair instream flows or base flows. Establishes that permit-exempt groundwater withdrawals are presumed to not affect or impair instream flows unless “conclusive evidence” is provided proving otherwise.
This would result in giving a super priority to permit-exempt wells, harming both senior water right holders and instream flows.
- 1394 Regarding the processing of applications for Columbia river water right permits to clarify legislative intent to ensure that the rules can be implemented as written.
This bill would allow out of kind mitigation for impairment of Instream flows on the Columbia River System. It would harm instream flows and the fish and wildlife that depend on adequate water in the river. This is a companion to SB 5269.
- 1459 Considering the full hydrologic cycle in the review and approval process of new water uses. Changes the groundwater code and GMA such that Ecology and counties have to look at the “full hydrologic cycle” when assessing the impact of new groundwater withdrawals. This would result in impairment of streamflow, because removal of trees does not guaranty that groundwater is recharged or that streamflow is improved.
- 1460 Redesigning the transfer of water rights, including the statutory process of relinquishment. Changes the relinquishment statutes, requiring that Ecology provide conclusive evidence to prove water relinquishment. Establishes that water rights relinquished go into a special trust that be made available for irrigation, municipal, and other beneficial uses. This undermines water law by removing the “use it or lose it” provision designed to make sure water is put to a beneficial use. Shifting the burden to Ecology to prove that the water hasn’t been beneficially used, which is almost impossible to do.
- 1748 Modifying provisions within the growth management act to improve affordable housing opportunities in rural communities; Rolls back the Hirst Would allow permit-exempt wells to impair senior water rights.
House bill that CELP supports:
- 1172 Encouraging low-water landscaping practices as a drought alleviation tool.
House bill that CELP supports with concerns:
- 1760 Relating to off-site mitigation for projects
News Release – Event on June 8
National leader in environmental law, UW’s Bill Rodgers, and Rep. Derek Stanford to be honored for water protection
UW Law Professor honored for lifetime’s work as legal scholar, willingness to challenge polluters, protect environment and Indians’ fishing rights
Rep. Stanford honored for leadership in Legislature to protect public’s waters in Washington State
- Trish Rolfe, Center for Environmental Law & Policy, email@example.com, 206.829-8299
Seattle – On June 8th in Seattle, a national legal scholar and a state legislative leader, will be honored: UW law professor William “Bill” Rodgers and Rep. Derek Stanford.
“We need to pause and take the time to thank and honor our heroes,” said Trish Rolfe, director of the Center for Environmental Law & Policy. “In this time of climate change, increasing pressure on our rivers and drinking-water aquifers, and rush to exploit the public’s waters, Professor Rodgers and Rep. Stanford deserve thanks and recognition for their public service.”
Professor Rodgers will receive the Ralph Johnson Water Hero Award. Rep. Stanford will receive the Washington Water Policy Award. The awards are presented by the State of Washington’s water watchdog, the Center for Environmental Law & Policy.
The Water Hero Award is given in honor of CELP’s founder, Professor Ralph W. Johnson, a law professor at University of Washington Law School who established the legal discipline of Indian Law and advanced legal understandings of protections for public waters. Past recipients of the award include Billy Frank Jr., (a close friend of Prof. Johnson) on behalf of the Northwest Indian Fisheries Commission; Swinomish Indian Tribal Community; and Upper Columbia United Tribes (recognizing all Tribes and First Nations working to modernize the Columbia River Treaty).
The Washington Water Policy Award, given for the first time, goes to an elected official or policy maker that shows outstanding contributions to sustainable water policy in Washington. The first to receive this award is Rep. Stanford for his work during the last two years in the House Agriculture and Natural Resources Committee and as vice chair for the Joint Committee, Water Supply During Drought, to help direct state water policy to a more sustainable path.
Honoring Event details
- Event: Celebrate Water! hosted by the Center for Environmental Law & Policy – Washington’s water watchdog
- When: June 8 (Wednesday) 5:30 – 7:30.
- Where: Ivar’s Salmon House 401 NE Northlake Way, Seattle
- Tickets: can be purchased on-line or at the door. Reception – $50; CLE – $30; both – $70
More about Professor Bill Rodgers
- Eye-witness and participant in writing nation’s environmental laws that ushered in the “environmental revolution” starting the late 1960s, 1970s;
- lawyer and witness in the “smelter cases,” including ASARCO’s smelter in Tacoma and the arsenic pollution of Tacoma and Puget Sound;
- lawyer for Indian activists, including after the takeover of the BIA office in Washington,D.C.;
- worked with attorneys, among them UW law professor Ralph W. Johnson, to protect Indian fishing rights (the Boldt decision), representing the Puyallup Tribe’s treaty rights to salmon; and
- author of major treatises on environmental law, an academic who has also worked to hold judges, including the U.S. Supreme Court, accountable for their decisions.
Prof. Rodgers is available for interviews. On a personal note, Bill Rodgers’ daughter, Andrea Rodgers, is a leading environmental attorney representing children challenging the State of Washington to address climate change. (more)
- Honoring event webpage
- Profile, Professor Rodgers
- The Personal Impact of the Boldt Case: A Tribute to Professor William H. Rodgers , Jr.
- Rep. Derek Stanford
- About Professor Ralph W. Johnson, and the Watershed Hero Award given in his name
This edition features water issues in the legislature, an update on Dungeness River litigation, and news about the WSU Water plan and Columbia River Treaty letter. Meet our new Development and Outreach Coordinator and learn about our upcoming events in Spokane and Idaho, our call for photos and stories and more.
Governor Inslee’s recent declaration of drought in 24 of Washington’s 62 watersheds has triggered a flurry of activity. By law, drought is declared when a region’s water supply is at 75% of normal (or worse) and this water deficit will cause “hardship” to water uses and users.
Washington has experienced a fairly normal year for rain, but air temperatures over the winter were nearly 5 degrees F higher than normal, making the 2014-15 winter the warmest on record. As a result, snow fall was scant. Mountain snowpack is like a natural reservoir. As accumulated snow melts over the summer, it percolates into groundwater and feeds the headwaters of streams. Water will flow in streams during summer months, even with no rain, as a result of snowpack and groundwater reserves. This year, snowpack is substantially less than normal for the Olympic, Cascade and Northern Rockies mountains, and as a consequence, we are facing a very dry summer season in Washington.
The biggest impact will be on fisheries. Irrigated agriculture is also taking a hit, especially in the Yakima basin. Municipal water supplies, especially for cities with big reservoirs (e.g., Tacoma, Seattle, Everett) appear to be in good shape.
In addition to physical aspects, drought has economic and political dimensions. The Department of Ecology convenes a Water Supply Advisory Committee (WSAC) to make recommendations about
drought activities. The WSAC has requested a $9 million appropriation to drill emergency wells, expedite water transfers, and provide loan and grant funding to farmers.
In an attempt to alleviate instream flow depletion, Ecology and others are conducting “reverse auctions” in the Yakima, Walla Walla and Dungeness basins.
Essentially the state offers to lease water rights from farmers who are willing to forego irrigation this summer. The goal is to keep water in upper tributaries that provide habitat for endangered salmon species.
Ecology is also seeking to lease or purchase existing water rights to offset use of emergency wells in the lower Yakima Valley. These wells were drilled in 1977 but may not be used except in drought circumstances. Since 1977, lawsuits and a US Geological Survey study have established that virtually all groundwater in the Yakima basin feeds into the lower Yakima River. Thus, pumping from emergency wells without mitigation would impair existing users and instream flow water rights. The bottom line is that water in the Yakima River basin is over-allocated, and in water-short years, junior water rights (called “pro-ratables”) take a big hit. Ecology will not authorize use of emergency wells without mitigation.
This raises public policy questions. Should it be the responsibility of Ecology to find “mitigation water” for junior users during a drought? Should Washington taxpayers underwrite the purchase of water for junior users?
Of particular concern, when junior users convert from annual to perennial crops, dramatically increasing the financial risk associated with drought, who bears that risk? The water users, or the public?
The Legislature has also convened a “Joint Legislative Committee on Drought” which is meeting regularly to discuss drought actions. Their meetings can be viewed on TVW.
The drought declaration may be extended to cover even more watersheds, and a statewide declaration is even possible. Large Puget Sound municipalities are comfortable with full reservoirs, and do not want a drought declaration that would lead their customers to conserve (and thereby reduce revenues). But, smaller purveyors and stream flows around the state will be hurting given the snowpack scenario.
Drought declarations can lead to much mischief in the public policy arena. CELP will report on drought activities throughout the spring and summer months to assess how well agencies and the Legislature respond in protecting public resources, i.e., public waters and public funds.
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.
If you aren’t already signed up to receive our monthly newsletter, sign up at the bottom of the page.
Water is a hot issue in the legislature this year, and CELP is currently working on a several bills. The majority of them are focused on the Skagit River instream flow rule, some seeking repeal or amendment, others seeking productive solutions in water short areas.
In November 2014 The Washington Realtors, Building Industry Association, and Farm Bureau filed a petition with Ecology, calling for a repeal of the original Skagit River instream flow rule. CELP opposed the repeal because it was inconsistent with the 2013 Swinomish Tribal Community v. State of Washington Supreme Court decision. Instream flow rules have been an issue in Skagit County for decades. The original rule, set in place by Ecology, does not allow unmitigated new domestic wells. In 2005, Skagit Valley sued to overturn the rule, at which point Ecology adopted an amendment that created “water reserves” in tributaries. Two years ago, Swinomish Indian Tribe successfully challenged this amendment, and the original rule was reinstated.
The following bills CELP opposes, but they have passed out of committee and are headed for a floor vote in the Senate:
SB 5129 states that domestic water supply should be an “overriding consideration of public interest.” This bill will create a “super priority” for domestic wells, and Department of Ecology will have to allow their use, even if that means reducing water supplies for existing water rights holders and instream flows. This patchwork solution does not address the larger issues we face, including diminishing water supplies due to over-appropriation, and climate change.
SB 5136 would lead to Ecology’s repeal of the Skagit Instream Flow Rule. This undermines all the work that has been previously done to protect salmon in the Skagit River. Again, this bill is a patchwork solution, and will inhibit progress towards sustainable water allocation.
SB 5407 would allow uninterrupted use of exempt wells in Skagit Valley. The bill presumes that these domestic wells have no impact on instream flows. The current system requires new users to demonstrate that their well will not harm existing water right users. This bill would shift the burden to Ecology to prove that a single well is having a negative impact on instream flow levels, before they can limit any withdrawals. This bill also disregards the cumulative impacts unlimited withdrawals of new and existing wells may have on instream flows. CELP will work with our water allies to stop these bills.
There are also several bills that CELP has concerns with. They are:
SB 5965 directs Ecology to study mitigation for permit-exempt wells, including out of kind mitigation. CELP does not oppose the study, but wants clarity that out of kind mitigation cannot serve as a bargaining chip in exchange for water withdrawals.
SB 5018 would waive the anti-degradation requirement of groundwater quality standards for aquifer storage and recovery projects. The anti-degradation law is an important catch-all to address pollutants that are not covered by federal drinking water standards. Also, the bill’s requirement to “protect aquatic resources” is vague and should be strengthened to ensure that all biotic communities are protected.
There are also a number of bills that CELP supports. These bills provide a more balanced approach to water resource allocation:
HB 1793 works within the framework of existing instream flow rules to provide property owners, located in areas of limited access to legal water withdrawals, the tools for alternative water procurement. CELP supports this bill, because it presents a balanced approach to water allocation that is beneficial for both humans and fish. Most importantly, it proposes alternative solutions in Skagit Valley, where water resources are under stress.
SB 5014 outlines best practices for water banking. Water banking has proved to be a sustainable alternative water resource for homeowners living in areas with limited water resources, including Kittitas County. The legislature should promote this important water supply alternative.
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 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.