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.