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2015 Legislative Overview

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.


CELP Hiring Staff Attorney

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 jobs@celp.org by February 15, 2015.


CELP joins with Tribes to Promote Balanced Solutions in Rural Water Supply Task Force Meetings

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.    


Inseparable: Land Use and Water Availability

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.[1]  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?

CELP’s Proposal:

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.


[1] Ecology’s Water Availability Guidance for Counties Website, http://www.ecy.wa.gov/programs/wr/wrac/rwss-wag.html.


Washington Water Watch (August 2014 Edition)

Did you miss our August Edition of Washington Water Watch in your inbox?

Click here to view the PDF version of our newsletter.

Don’t miss out on our update on the protection of Similkameen Falls and an excellent recap of the Columbia River Treaty Multifaith Prayer Vigils!


Rural Water Supply versus Instream Flow Protection

Update on Ecology’s New Stakeholder Process and Recent Litigation

by Rachael Paschal Osborn, CELP Senior Policy Advisor

Can Washington’s Water Resources Program ‘just say no’ to new water rights that impair instream flows and harm fish, wildlife and water quality? It’s a question CELP has asked for 20 years, and unfortunately, recent Department of Ecology efforts indicate the answer is still no.

As you may recall, in October 2013, the Washington Supreme Court issued its decision in Swinomish Indian Tribal Community v.  Ecology:  a decision that underscored that instream flow rules are bona fide water rights that  Ecology could not subsequently abrogate in favor of permit exempt wells. That decision has prompted  Ecology to explore with the counties alternative means of supplying water for new development.  At first Ecology was talking only with the counties.  At CELP’s insistence, Ecology opened up its conversations to include interested Tribes and CELP in a new a new stakeholder process, called Rural Water Supply Strategies, to craft responses to the Swinomish decision and others that constrain the use of exempt wells.  For more on the Swinomish decision and its implications see Suzanne’s article, “No Quick Fixes to Competing Demands for Water” (WA-AWRA Newsletter, June 2014).

The first meeting occurred on  Monday, June 16th. CELP is concerned that the process  might become be better described as  “Undermining Washington’s Instream Flow Program”  since the majority of participants asked that Ecology subordinate instream flows  to new wells for rural development. Of particular concern:  suggestions to create a blanket exemption to allow new exempt wells regardless of impacts on instream flows, and to use “out of kind” mitigation to fund habitat restoration disconnected from actual depletion of instream flows caused by new wells.

CELP’s representatives to Ecology’s process include board member Dave Monthie of DLM & Associates; Melissa Bates, founder of Kittitas water advocacy group Aqua Permanenté; and our legislative director, Bruce Wishart.  Melissa and Bruce delivered important messages on June 16, including that:

  • Instream flows are water rights that are entitled to the same protections as out-of-stream rights
  • Ecology is not authorized to utilize out of kind mitigation to substitute for instream flow depletion.
  • When all the water in a basin is fully allocated for existing rights and environmental flows, Ecology must close the basin and ‘just say no’ to new rights.  At that point, full mitigation is needed.
  • Climate change will only make matters worse as snowpack and glaciers recede.   Alternative water supply must focus on demand management, including conservation, use of reclaimed water, and changing our water ethic.

Click here for a complete list of CELP’s Proposed Water Management Strategies. For a detailed analysis of the Swinomish decision, CELP will continue to attend Ecology’s Rural Water-Instream Flow process through September and into the 2015 legislative session, actively promoting the public interest in Washington’s rivers and aquifers.


The CELP Washington Water Leadership Award

Senator Karen Fraser

Senator Karen Fraser. Photo from her website: http://sdc.wastateleg.org/fraser/biography/

CELP’s Washington Water Leadership Award honors individuals and organizations who publicly advocate for sustainable water resource stewardship in Washington and the Pacific Northwest.

This year we will be giving the inaugural Washington Water Leadership Award to Senator Karen Fraser. Senator Fraser represents Washington State’s 22nd Legislative District, the State Capitol area, and currently chairs the Senate Democratic Caucus.  She has long been a champion of responsible water policy, and has been a vigorous advocate throughout her elective office career.  She has spoken out in the State Legislature, in county and city government, in regional and national organizations, and at international forums. She also serves as Adjunct Faculty in the Master of Public Administration Program at The Evergreen State College where she includes an introduction to the intergovernmental complexities of water policy in her classes.

We will honor Senator Fraser with the award at Celebrate Water on June 25, 2014. We hope to see you there!


2014 Legislative Session Overview

By Bruce Wishart, CELP’s Government Affairs Specialist

The 2014 session is now well behind us and it’s time to review what progress was made on water issues in Olympia this year.  Some political observers have described the 2014 legislative session as one of the least productive sessions on record.  Strong differences between the House and Senate, combined with the fact that this was a “short” or 60 day session (and an election year), made it difficult for agreement to be reached on most topics.  Nevertheless, legislators engaged in a vigorous debate on lots of issues, including water resources and water quality issues.  CELP, working together with tribes and other environmental groups, helped lead efforts this session to defeat a number of bills that would have seriously impacted our waters.

While there were fewer water resources related bills introduced than we have seen in subsequent years, the heated debate over rural development and exempt wells continued.  Local governments, agricultural interests, and developers all supported legislation offered in the House (HB 2288) which would have stripped away authority from the Growth Hearings Board to oversee decisions by local government to permit rural development in areas where water supplies were scarce.  This bill followed in the wake of the Board’s decision in Hirst v. Whatcom County, which affirmed and built upon prior court decisions holding that local governments have an obligation to ensure that water is legally available for new development before approving comprehensive plans or permitting new projects.  Despite the Growth Management Act’s multiple directives that counties determine water availability before approving land use development, the proponents of HB 2288 argued that the Hearings Board had overstepped its bounds.  CELP and tribal representatives opposed the bill and, thankfully, it did not advance.

In the Senate, Senator Honeyford (R-Yakima) introduced SB 6467, which would have overturned a recent Washington Supreme Court decision, Swinomish Indian Tribal Community v. Ecology, which held that Ecology improperly authorized exempt well use despite clear evidence that the wells would deplete minimum instream flows for the Skagit River, adopted by rule.  SB 6467, again, opposed by both CELP and the tribes, was also defeated.

Several other bills were offered on the topic of local “water banking” in both the House and the Senate (HB 2760, HB 2596, and 6239).  Water banks allow for new water users to purchase “credits” to offset the impact of their water usage in areas where new development would impact instream flows and other existing water rights.  While CELP supports that approach generally, we were concerned that these bills might encourage local governments to move forward with water banks without having the technical expertise to properly assess the validity of the rights being banked and to conduct the trading properly.  In the end, these bills also fell by the wayside.

On the water quality side, five bills were introduced by the Cattlemen and the Farm Bureau in an attempt to strip away Department of Ecology’s authority to regulate “nonpoint” agricultural water quality problems.  “Nonpoint” pollution refers to diffuse sources of pollution—such as cattle manure in streams they use for watering.  Once again, these bills were introduced in response to  a  recent Washington State Supreme Court decision, Lemire v. Ecology, which  affirmed that Ecology had clear authority under state law to prevent farms from discharging pollution into the waters of the state.  A variety of bills were introduced on this topic (SB 6087, 6288 and HB 2472, 2478) which would have either eliminated the agency’s authority outright or, in the alternative, placed many restrictions on their ability to exercise it.  CELP working again with other environmental groups and tribes stopped these bills dead in their tracks.  The discussion over this authority will continue this summer in a Water Quality and Agriculture working group created by Ecology Director Maia Bellon to discuss how water quality requirements will be enforced, among other topics.  (CELP accepted Ecology’s invitation to l participate in the working group; there are only a handful of few environmental representatives on it).   A fifth bill, HB 2454, allows an initial investigation of water quality trading.  After considerable effort, CELP ensured that this bill was amended to our satisfaction.  The bill is on the Governor’s desk awaiting his signature.

The Legislature’s last order of business was approval of “supplemental” budgets.   Since the state operates on a two year, “biennial budget,” the supplemental budgets adopted this year were, for the most part, “course corrections” amending the 2013-14 biennial budget adopted last year.  For this reason, the debate lacked much of the drama we saw last year on the main budget.  One area in which there was a great deal of controversy was the state Supplemental Capital Budget, which funds construction projects.  This year, for the first time since 1996, the House and Senate could not come to agreement on a Capital Budget.  Among other things, the collapse of negotiations on this budget sank efforts to create a legislative study group designed to develop recommendations on anticipated referendum to be introduced in 2015 to finance large scale water projects throughout the state.  The legislative study group would have been charged with developing a multi-billion dollar revenue source to fund controversial water storage projects, such as those proposed for the Yakima Enhancement Project, as well as water projects that enjoy broad support, including those designed to address harm from stormwater runoff.