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Hirst Update: Watershed Restoration and Enhancement Committees

by Trish Rolfe
Last session, the Washington State Legislature passed a streamflow restoration law, ESSB 6091, in response to the Supreme Court’s

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.

The Nooksack, Nisqually, Lower Chehalis, Upper Chehalis, Okanogan, Little Spokane, and Colville basins all have previously adopted watershed plans. For these seven basins, local watershed planning units are to update their watershed plan in order to compensate for the impacts of new permit exempt well uses.
The law identifies the Nooksack and Nisqually basins as the first two to be completed. They have until February 2019 to adopt a plan; if they fail to do so, Ecology must adopt related rules no later than August 2020. Planning units in the Lower Chehalis, Upper Chehalis, Okanogan, Little Spokane, and Colville basins have until February 2021 to develop their plans. Until watershed plans are updated and rules are adopted in these seven watersheds, new permit-exempt wells require only payment of a $500 fee. The maximum withdrawal is 3,000 gallons per day per connection on an annual average basis.

Deschutes River – Photo from WA Dept of Ecology

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:

  • Ecology will establish and chair watershed committees and invite representatives from local governments, tribes, and interest groups.
  • The plans for these watersheds are due June 30, 2021.
  • New permit-exempt wells require payment of a $500 fee.. The maximum withdrawal is 950 gallons per day per connection, on an annual average basis. During drought, this may be curtailed to 350 gallons per day per connection for indoor use only.
  • Building permit applicants in these areas must adequately manage stormwater onsite.

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.

The law also provides $300 million until 2033 for projects that will help fish and streamflows. Watershed planning groups will recommend proposals for funding by Ecology to achieve this.

Litigation News: Freeing the Similkameen River and Dungeness River Rule Challenge

by Dan Von Seggern

CELP Continues Fight to Free Similkameen River

The long-running battle to remove this environmentally damaging and economically unjustifiable Enloe Dam continues. A major tributary to the Okanogan River, the Similkameen flows through 122 miles of potential salmon habitat in British Columbia and Washington. A fish-blocking dam was constructed on the River in 1922 and has not generated power since 1958. The Okanogan County Public Utility District (PUD), which owns the dam, is attempting to restart power generation at the dam. The power the dam would produce is not needed and would be much more expensive than the PUD’s current sources of electricity.

On September 13, along with the Sierra Club and Columbiana, CELP filed a Notice of Intent to Sue the Okanogan County PUD as well as the National Marine Fisheries Service (NMFS) and the Federal Energy Regulatory Commission (FERC) over the dam’s effect on ESA-listed Upper Columbia steelhead and Chinook salmon. The Notice is the first step towards filing a lawsuit under the Endangered Species Act. We contend that the dam unlawfully harms ESA-listed fish species, that the process of evaluating the dam’s impact on fish was inadequate, and that FERC unlawfully failed to consult with NMFS regarding the listed fish, as the Endangered Species Act requires.

In a separate action, CELP has asked the 9th Circuit Court of Appeals to review FERC’s giving the PUD additional time to begin construction. The Federal Power Act requires that construction be started within the period of a hydroelectric license, and allows only a single two-year extension. When the PUD failed to begin construction within the required time, FERC “stayed” revocation of the license, effectively giving the PUD additional time. CELP believes that FERC lacked authority to “extend” the license in this manner and that it should have allowed public participation in the license amendment process.

Dungeness River Rule Challenge

This case (Bassett et al. v. Ecology, Case No. 51221-1-II) is a challenge by a group of property rights activists and developers to the Department of Ecology’s Instream Flow Rule for the Dungeness River, WAC 173-518.  CELP supports the Rule, which provides for mitigated use of new permit-exempt wells while protecting instream resources.  After the plaintiffs filed suit against Ecology, CELP joined in the case as an intervener to argue in favor of the Rule. CELP and Ecology prevailed in Thurston County Superior Court, and plaintiffs appealed.   Division II of the Washington Court of Appeals heard oral argument in the case on October 18 and we are now awaiting the Court’s ruling.

Protecting Rivers and Salmon in a Post-Hirst Future: Hard Work Is Ahead

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.


WA State Legislature Passes Flawed “Hirst Fix”

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.

  • In WRIAs where Ecology has adopted an instream flow rule that specifically addresses permit-exempt wells (for example, WRIA 18, the Dungeness River), compliance with the applicable rule is sufficient to show water availability for a building permit.
  • Where Ecology has adopted a rule that does not speak to permit-exempt wells, a plan to restore and enhance streamflows is to be generated. In WRIAs that created watershed plans under the 1998 Watershed Act, the bill requires that these plans be updated to include projects to “measure, protect, and enhance streamflows,”   and to offset impacts of permit-exempt wells.
  • If no watershed plan was previously developed, the bill directs formation of “watershed restoration and enhancement committees” composed of stakeholders. These committees are heavily weighted towards stakeholders who have an interest in developing water, rather than preserving the resource, and CELP is concerned that they would not have adequate incentives to truly restore and enhance the streamflows.
  • In watersheds where Ecology has not yet adopted an instream flow rule, an applicant need only show that water is physically present (in other words, there is no requirement to mitigate or compensate for water use).   This is the situation in about half the state’s watersheds, including some that are experiencing high growth pressures such as the Cowlitz River (WRIA 26).

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.


Washington Water Watch: November Edition

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.


Washington Water Watch: June 2017 Edition

In this issue, find pictures of our recent Celebrate Water event, an update on the Spokane River rule, links to CELP’s Columbia River Treaty media and document library, and an opportunity to speak up for the Hanford Reach National Monument!

Read the June issue of Water Watch here.


Washington Water Watch: May 2017 Edition

In this issue, read about our upcoming Celebrate Water event and a bio of the Ralph Johnson awardee, John Osborn, meet our summer legal intern, learn about our latest victory on Icicle Creek, a recap on the Revelstoke, B.C. One River – Ethics Matter conference, and enjoy an update on the culvert case!

Read the May issue of Water Watch here.


Washington Water Watch: April 2017 Edition

In this issue, learn about WRIA 56 Hangman Creek in the latest post of the Watersheds to Watch blog series, learn about CELP’s upcoming participation in GiveBIG, sign up to paddle the Hanford Reach with John Roskelley, and meet our office puppies!

Read the April issue of Water Watch here.


Washington Water Watch: February Edition

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.

 


January 2017 Edition of Washington Water Watch

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.

Read the January 2017 issue of Washington Water Watch here.