Hirst decision. Hirst changed how counties could approve or deny building permits that use permit-exempt wells for a water source.
The law, RCW 90.94 Streamflow Restoration, helps protect water resources while providing water for rural residents reliant on permit exempt wells. The law directs local planning groups in 15 watersheds to develop or update plans that offset potential impacts to instream flows associated with new permit-exempt domestic water use. The law splits up these watersheds into two groups: those with previously adopted watershed plans and those without.
Eight other watersheds do not have previously adopted watershed plans. They are Snohomish, Cedar-Sammamish, Duwamish-Green, Puyallup-White, Chambers-Clover, Deschutes, Kennedy-Goldsborough, and Kitsap. For these eight basins:
CELP has been appointed to participate on the Snohomish, Cedar-Sammamish and Duwamish-Green watershed planning units, and we have volunteers participating in several others.
by Dan Von Seggern
As we discussed in the last issue of Washington Water Watch, the State Legislature passed a bill (ESSB 6091) that was designed to “fix” the Hirst decision. CELP is deeply concerned about the potential effects of this bill.
First, at least for the next few years, there will be no meaningful controls whatsoever on permit-exempt withdrawals in most of the state. Most landowners will be able to get a building permit simply by paying a minimal fee, regardless of the effect on streamflows or other water right holders. Once these new uses have been established, they will represent permanent withdrawals of water, regardless of whether they adversely affect the environment. Second, and even worse, another part of the bill is clearly intended to overturn the Foster decision, which requires that water withdrawals be mitigated with water. Foster is a very important control on the use of “out-of-kind” mitigation, which can result in dewatering streams and harm to fish.
The bill does set out processes that are intended to lead to plans (established by watershed planning groups or newly established watershed enhancement committees) for mitigation of well impacts, but its structure creates strong incentives for indefinite delays: any plan adopted would almost certainly be more restrictive than the current situation created by ESSB6091, so that there will be strong pressure to do nothing.
Along with these serious concerns, there is some reason for optimism. The bill takes a “watershed enhancement” approach and calls for future mitigation plans to offset the impacts of wells on streamflows. As expressions of policy these are welcome statements. It also provides funding for projects designed to offset the impacts of permit-exempt wells, and at least on paper requires that streamflows be enhanced. However, as so frequently happens, the devil will be in the details, and the hard work is yet to come. CELP will be working to ensure that the Department of Ecology’s actions, and those of the watershed enhancement committees, actually benefit streams.
Ecology has announced that it plans to hire additional staff to implement the streamflow enhancement goals of the law. This is a welcome development. It has also begun to issue statements offering guidance as to how the new provisions will be interpreted and applied. How Ecology plans to accomplish the streamflow enhancement goals should become clearer as more guidance is issued. Ecology will also be responsible for awarding funds to streamflow restoration and enhancement projects and plans to begin accepting proposals this summer. Careful evaluation of these projects will be critical in order to ensure that real streamflow enhancement occurs. The work of the legislative task force on out-of-kind mitigation also bears watching, as a “Foster fix” has an even greater potential to impair streamflows.
CELP is cautiously optimistic that a regulatory framework that protects streamflows, fish, wildlife, and other water users can be established. However, we must be vigilant and carefully evaluate proposals for mitigation of water use, so that the goal of enhancing flows and protecting river/stream environments is actually met.
by Dan Von Seggern
Our state legislature began this year’s session by passing a bill to remove the 2016 Whatcom County v. Western Washington Growth Management Hearings Board (“Hirst”) decision’s protections for groundwater and streamflows. Hirst reaffirmed existing law and required that counties ensure water is both physically and legally available before granting building permits. This common-sense rule provided a critical check on withdrawals of groundwater that affect streams and rivers, and harm fish habitat. Unrestricted groundwater withdrawals can impair the rights of senior water holders, including users of existing wells who are now seeing their wells go dry. Worse yet, the bill takes a step towards reversing the Foster v. Ecology decision, which requires that impacts to streams be mitigated with replacement water, rather than with non-water (“out-of-kind”) habitat restoration projects.
Concerned that having to show that water was actually available could slow development in rural areas, counties, the building industry, and property rights groups pressured the Legislature to find a “fix.” On January 18, the Legislature passed a bill (ESSB 6091) that allows counties to approve building permits that rely on permit-exempt wells.
ESSB 6091 stresses a “watershed restoration and enhancement” approach, rather than requiring that water use from permit-exempt wells be mitigated. While the goal of protecting and enhancing streamflow is a worthy one, this bill has significant flaws and will not provide adequate protection for streams, fish, or people who rely on them. Development is essentially unrestricted in most areas until the new plans are completed (2019 – 2021). The damage to streams will likely be done before any regulations are established.
ESSB 6091 also undermines mitigation of future water use by authorizing “out-of-kind” mitigation projects (such as streambank restoration or addition of large woody debris to a river channel; by definition, such projects do not provide replacement water) to compensate for new water uses, rather than requiring replacement water to maintain streamflows. CELP believes that out-of-kind projects will become the path of least resistance in compensating for water use, and streamflows will inevitably be impaired. Even the best habitat is of little use if there is insufficient water in the stream.
CELP is especially disappointed that ESSB 6091 lacks any metering provision, or any other method to determine how much water is actually used. Without metering, compliance with the limits in RCW 90.44.050 or with any limits set by the respective watershed committees cannot be verified, and there will be no way to know whether the impact of permit-exempt wells is actually being “offset.” Because quantities cannot be verified, water use under this scheme is in practice unlimited. Simply relying on users not to exceed allowable limits is poor policy and could make much of the watershed protections plans meaningless.
ESSB 6091 requires Ecology to conduct a pilot study of “the overall feasibility” of metering groundwater withdrawals (including permit-exempt wells) in the Dungeness (WRIA 18) and Kittitas county (WRIA 39) areas. But no pilot project is needed. Ecology’s rules in these areas already require that new permit-exempt wells be metered, and metering has already proven feasible. Rather than directing Ecology to waste time and resources on these studies, a better approach would be to require metering on all new permit-exempt wells, so that the data needed to ensure that streamflow impacts are compensated for can be gathered.
Finally, ESSB 6091 establishes a legislative “task force” with the mission of identifying changes in law to effectively overturn the Supreme Court’s 2015 Foster v. Ecology decision. Foster held that water use that impairs an instream flow or other senior water right must be mitigated by providing substitute water at an appropriate place and time. This provided important protections for salmon, which depend on water being present in streams at the time it is needed for migration, spawning, and rearing. The bill authorizes a list of pilot projects that appear intended to demonstrate out-of-time, out-of -place, or out-of-kind mitigation. CELP is concerned that this provision is designed to reach a preordained conclusion that out-of-kind mitigation is acceptable, and to pave the way for its broader use. The consequences to Washington’s rivers and the fish that depend on them may be disastrous.
Seattle – The Washington Legislature today passed a sweeping permit-exempt well bill (SB 6091, the “Hirst fix”) that will have dire consequences for Washington’s endangered salmon and the people who depend on them. Most of our state’s rivers and streams are already imperiled due to low streamflows. It is well-established that pumping groundwater, including unregulated water withdrawals by “permit-exempt” wells, reduces streamflow. Rural development using permit-exempt wells has been happening at an accelerating pace, taking more and more water from streams and other senior users.
The 2016 Whatcom County v. Hirst decision was not new law. Hirst simply reaffirmed that new wells may not impair more senior water users, including instream flows. Special interests including the building industry and real estate agents pressured the Legislature to ignore the science and “fix” the decision so that rural sprawl could continue unimpeded. Today, Legislative Democrats gave in to that pressure. While this bill is styled as a “fix,” its real effect will be to allow more and more unmitigated water use. The results are predictable: lower streamflows, higher water temperatures, and fewer fish in the rivers.
Methods for mitigating water use and avoiding impacts on streamflows are well-established, and indeed are in use in several parts of the state. But the bill does not require mitigation; it provides for “watershed preservation and enhancement committees” which will develop projects to “offset water use by permit-exempt wells.” While well-intentioned, the committee process is unlikely to lead to fully mitigating water use. Worse yet, the bill fails to meaningfully limit water use or even to provide for metering of water use, so that we will never know how much water is actually being used. It is almost inevitable that senior users and rivers will be harmed.
Another provision of the bill is even more troubling: it calls for “pilot projects” allowing water to be taken from streams and mitigated using so-called “out-of-kind” mitigation (generally stream-related habitat projects) rather than actually protecting streamflows. This is especially egregious because this provision is not even aimed at Hirst, but at another decision holding that streamflows must be protected (Foster v. Ecology). Out of kind mitigation sets the stage for a huge water giveaway, with serious consequences to streams and fish.
“The best habitat in the world is worthless if there is not enough water in the streams,” said Dan Von Seggern, staff attorney for CELP. “As mitigation water becomes harder to find, it is inevitable that “out-of-kind” mitigation will become the path of least resistance. Ecology needs to live up to its obligation to protect instream resources by carefully monitoring the watershed committees and the “offset” schemes they develop.”
“We are disappointed in leadership in the Legislature that has allowed the capital budget to be held hostage to an issue that has nothing to do with the budget. This agreement will harm fish, senior water right holders, and tribes. We expected better” said Trish Rolfe, CELP’s Executive Director.
In this issue, an article on recent victory in court on the Leavenworth Hatchery Clean Water Act Case, a story on CELP’s founding director, Rachael Osborn, being recognized by AWRA-WA with their award for Outstanding Contribution to Water Resources, a welcome to CELP’s newest staff member, Emma Kilkelly, information about our December CLE, and more.
Read the November edition of Washington Water Watch here.
Check out CELP’s February edition of Washington Water Watch! In this issue: an update on water legislation making its way through the State Legislature, an article on the Grays-Elochoman & Cowlitz watersheds, and updates on our upcoming events.
Read the February issue of Water Watch here.
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.
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
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.
This bill allows temporary, leased water to be used to mitigate ongoing use of domestic wells.
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
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.
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
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.
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.
This would result in giving a super priority to permit-exempt wells, harming both senior water right holders and instream flows.
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.
House bill that CELP supports:
House bill that CELP supports with concerns: