The Washington State Department of Ecology has initiated a costly process in Whatcom County called a water rights adjudication.  Ecology openly calls this “the Nooksack Basin adjudication”.  Yet, those who live in the Sumas River basin know this simple fact: all of their water runs north into Canada, NOT to the Nooksack River.  Tom Pors is assisting this group with a motion to the Whatcom County Superior Court to remove the Sumas River basin from the boundaries of this costly and lengthy legal action.  

SUMAS-OUT is a group of water right holders in the Sumas Watershed who are asking to be removed from the legal process of adjudication.  They are 11 farming and dairy businesses, along with the City of Sumas, supporting a joint legal effort to file a motion with the Superior Court to exclude the Sumas River and associated groundwater from the adjudication.

Why exclude the Sumas River?   Adjudications are long (the Yakima River adjudication took over 40 years) and expensive (you may need to hire a qualified lawyer to defend your water rights).  The Nooksack adjudication includes groundwater, which creates considerable uncertainty about future regulation to protect instream flows.  But the Sumas River is not tributary to the Nooksack and 70% of the Sumas basin is in Canada.  It isn’t necessary to include the Sumas River in the adjudication boundary.  

When will the motion be filed?  After Ecology serves a summons in the adjudication, probably in early 2025. 

If the motion is successful, what happens?  If the Sumas River and associated groundwater is excluded from the boundary of the adjudication, water right holders in the Sumas Exclusion Area will not have to file a claim or defend their water rights in the Nooksack Adjudication. 

Do I have to join SUMAS-OUT to benefit?  This is a voluntary effort. If successful, this effort will benefit all property within the proposed excluded area.

How can I help?  Right now, we are raising money for attorney and consulting fees to file and win the motion.  Contributions can be made to Sumas Out c/o DAWG c/o Foothills Bookkeeping 410 W 3^rd St, Nooksack, WA 98276. You can also contact Thomas Pors if you want to join the motion as a supporting party after it is filed.

Law Office of Thomas M. Pors, 1700 7^th Ave., Suite 2100, Seattle, WA 98101

This paper begins with an examination of the history of instream flow protection and its effect on groundwater availability, describes the Yelm water right application decision, and the PCHB appeal and decision. It concludes with the Foster decision and its effects on water right permitting, and discusses the potential “Foster fix” in Part 3 of ESSB 6091, adopted by the Washington Legislature and signed into law in January 2108.

To download the complete article, click here.

This paper explains how natural resource conflict problems such as the Hirst and Foster decisions can be resolved using recognized ethical principles and shared community values. The ability to resolve a conflict ethically implies that to not resolve the conflict violates these same ethical principles. This is not just a challenge to state lawmakers and the stakeholders who lobby them, it is a comment on the current state of polarizing politics in our nation and state. In both the creation of this state’s water resource conflicts and in the process of avoiding workable compromises, we have sacrificed community moral values and ignored ethical principles. The author contends that in order to change course for the public good, we need to increase our collective awareness of the connection between water availability conflicts and these recognized ethical values.

An effort is made in this article to explain the relevance of ethical principles to current water availability conflicts without promoting any particular solution, because solutions should be developed by the processes employing these principles.  A synopsis of the Hirst and Foster decisions that most impact water availability in Washington is provided at the end of this paper.  To download a pdf of this article, click here. The author reserves all rights to this content and attribution should be given for any use.

See also other articles on this webpage regarding these cases and instream flow regulation.

What are the Ethical Principles that Inform Natural Resource Conflicts?

Different ways of conceptualizing what water is and how human beings should use it have different ethical implications. Viewing water as a component of an ecosystem commons implicates principles of sufficiency/equity and proportionality, as explained below. Treating water as a commodity to be bought and sold, or as property to be controlled unilaterally, implicates human rights and social and environmental justice. For instance, the prior appropriation doctrine establishes property rights in water, including instream flow water rights, which can conflict with the basic human right to access drinking water.[1] In 2010, the human right to water was officially recognized by both the UN’s General Assembly[2] and the Human Rights Council.[3]

Ethicist James Martin-Schramm presented four key ethical values as relevant to the resolution of water conflicts at a 2004 seminar sponsored by Seattle University School of Theology and the Center for Water and Ethics: sustainability, sufficiency, participation, and solidarity.[4] The identification and exploration of these principles was based on decades of work by theologians and ethicists dealing with environmental health and social justice issues.[5] The object of an ethical negotiation or compromise relating to water allocation is to incorporate these values in a meaningful discussion with the appropriate stakeholder interests.

Why Employ Ethical Principles in Water Allocation Conflict Resolution?

Ethics is concerned with what human beings ought or ought not to do. Water resource conflicts have been identified as a “metaphysical blindspot in ethics,” which is remarkable given that water is vital to all human endeavors and their effect on nature.[6] As evidenced by the 2017 Legislature’s failure to adopt a Hirst fix or a capital budget through three extra sessions, water management is contentious and not easily accomplished in a top-down process.

Why has the legislative process in Washington State failed thus far to resolve water availability issues? Stakeholder positions in a top down process are typically one-sided and issues are presented to legislators as existential crises, while competing users’ positions are presented as threats rather than community concerns that deserve equal attention. Groundwater management and the effects of small withdrawals on stream flow are also complex technically and subject to oversimplification and outright misrepresentation by non-technical advocacy groups. Most legislators are not well educated on the technical side of water resources and with so many competing legislative objectives, they tend to default to favored constituent or caucus leadership positions rather than debate competing ideas or engage in conflict resolution with affected parties.

Centralized management of groundwater resources in the Washington State Department of Ecology (Ecology) has failed to anticipate and avoid the prevailing judicial interpretations regarding water resource allocation and protection, including Ecology’s losing positions in the Foster and Hirst cases. (See Background section, below). Many or most of Ecology’s instream flow rules failed to anticipate the conflict between surface water protection and groundwater availability, yet Ecology has failed thus far to recognize that its rules are outdated and need substantial revision in light of new science and subsequent court decisions. Finally, Ecology has failed to draft or introduce any comprehensive solutions, despite facilitating a two-year stakeholder process to find specific solutions to rural water availability issues.[7] Stakeholder views were solicited by Ecology, but efforts were not made to engage stakeholders in dispute resolution or recognition of shared community values.

The failure of state agencies and the Legislature to resolve water resource conflicts raises the question whether it may be appropriate to place the management of water in the hands of those who have a stake in it. “Groundwater management should be in the hands of the stakeholders of the aquifer, under the supervision of the corresponding water authority. The stakeholders’ participation has to be promoted bottom-up and not top-down.”[8]

How to Develop Solutions Employing Ethical Principles?

As described elsewhere in this article, an ethical approach to resolving the state’s water resource conflicts involves initiating a process with stakeholder representatives and other decision-makers rather than relying on tried and failed top-down legislative or centralized management processes. The process used and persons invited to participate should also be guided by the same ethical values, which can be described as moral norms because they conform to our collective sense of a just society. This includes procedural and decision-making process values, such as democratic governance rights, active participation, transparency, accountability, and public-private collaboration and partnership. These values can provide answers to such questions as: Who participates in the decision-making process? How is a balance determined between the needs of human development and the need to preserve our natural resources?  This process could be used to resolve specific issues, such as legislatively adopted mitigation standards for groundwater applications affecting instream flows, for future water allocations on a watershed basis, or for individual conflicts.

Ethical Principles Applied to Water Allocation Problems

Sustainability. This value expresses concern for future generations and the planet, emphasizing that an adequate and acceptable quality of life today must not jeopardize prospects for future generations. Sustainability precludes short-sited emphasis on economic growth that harms ecological systems, but also excludes long-term conservation efforts that ignore human needs and costs.[9] The balance between conservation and human access is different for each watershed and evolves over time, because watersheds have unique fisheries and recreational assets and communities within watersheds have unique population densities and settlement/development histories. This rules out a one-sized fits all approach to sustainable water usage and conservation and suggests a greater need for flexibility and local involvement.[10]

Sufficiency. This value emphasizes that all forms of life (including people and fish) are entitled to those resources required to meet their basic needs, which is particularly relevant to such basic needs as clean air and access to drinking water. It repudiates wasteful consumption and encourages fairness and generosity.[11] Related to this is equal respect for human dignity, a fundamental principle of public health ethics.[12]

Related to the values of sustainability and sufficiency is the principle of equity and proportionality.  Meeting the needs of all persons and the environment is important, but equity and proportionate response require, in the face of limited resources, to give priority to the least well off, those most immediately at risk, and those made vulnerable by past discrimination, exclusion, and powerlessness.  This principle calls for protecting streams from over-appropriation, but also protecting ground water availability in rural areas and growing suburban communities where the most affordable housing alternatives are located. It seeks to prevent the inequities of so-called “have” and “have-not” communities.  For instance, forcing individual property owners to pay for mitigation of impacts caused by prior users of surface and groundwater is neither equitable nor proportional to the impacts caused by each new permit-exempt groundwater use.

From a financial and public health perspective, closing the safest and most affordable water supply alternative for rural development appears to be disproportionate and inequitable, especially if there are regional solutions available to mitigate for incremental cumulative effects on instream functions and values. There is also a disproportionate administrative impact to counties and state agencies administering water allocation and mitigation processes for the smallest water systems with the smallest impacts on water resources. State funding and coordination of regional mitigation efforts for cumulative impacts from the smallest users would be far more financially efficient and fair than requiring each landowner to conduct an individual water availability analysis and mitigation plan to be reviewed by county officials and potentially appealed to the courts. It would also result in better stewardship of our water and salmon resources.[13]

Participation.  The ecojustice norm of participation addresses the values inherent in the process of policymaking and decision making. Legislatures and courts may be influenced by powerful, well-organized, and well-funded groups on all sides of the political spectrum. For instance, there has been a rapid rise over the last decade of political contributions from federally-recognized Indian tribes, which in Washington State has been heavily tilted to the Democratic Party.[14] The most significant water right appeals in Washington state over the last decade have been funded by tribes and environmental organizations, not by consumptive water users or public water systems.[15] A dominant influence over government by any particular interest group is not well suited to the equitable distribution of water or any public resource.  From an ethical point of view, governance mechanisms should involve a deliberative and participatory process marked by transparency, universal access to information, inclusiveness, and individual and community empowerment so that all may take advantage of the open information and the participatory opportunities.[16]  Participation implies equality of access to decision-making processes, and is not inconsistent with balancing the needs of human development with the need to preserve our natural resources and maintain a healthy ecosystem.

The water rights that most limit legal availability of water in Washington State are minimum instream flow water rights, which are established and managed by Ecology for the purpose of preserving environmental values such as water quality, fish habitat, recreation and aesthetics. Unfortunately, the rule-making processes for most of these instream flow rules did not allocate water for future human domestic needs despite statutory policy that water be allocated according to the maximum net benefits to the public. RCW 90.54.020(2), 90.03.005. These instream flow rules have not been updated despite new information linking groundwater and surface water and new court decisions affecting the availability of groundwater.  The Washington Supreme Court has interpreted instream protection rules as excluding other uses of water, thus denying human access to water despite the failure to balance the public interests between water for instream and out of stream needs. Thus, the state’s groundwater has essentially been closed to new uses in order to protect instream flows without any public notice or robust balancing of public interests between environmental and human water needs. This process excluded public participation in the closure of groundwater that is relied upon by rural property owners and growing communities. Some open and public balancing of interests in groundwater should have happened, but did not.

Solidarity.  This moral norm emphasizes kinship and mutual interdependence, encourages assistance for those who suffer, discourages discrimination and oppression, and embodies a fundamental communal nature of life in contrast to individual rights and the pursuit of accumulation.  The notion of solidarity and interdependence applies in both social and ecological contexts, between human communities and nature. In water ethics, solidarity reminds us of what may be called our “upstream and downstream interdependence.”[17]

Treating water rights as private property implicates the conflict between self-interest and the social/ecological common good. There are situations in which the pursuit of rational self-interest leads to outcomes that are irrational and harmful to the interests of other individuals and communities, the so-called tragedy of the commons.  In other words, the human interests served by sustainable and sufficient water supply and by biodiversity and maintenance of a healthy environment are often not well served by encouraging individual behaviors that seek to maximize their self-interest. Treating water as a commodity under the prior appropriation doctrine, and creating incentives to preserve private water rights for future markets may be inconsistent with several of the ethical principles described above. Understanding that water is a common resource and a fundamental need, and that sustainable water utilization is a common good, can provide the basis for ethically appropriate solutions to current and future water availability issues.

Conclusion

The ethical principles of sustainability, sufficiency, participation, and solidarity are a useful guide for both governmental and individual behavior in the resolution of water resource conflicts. The Washington legislature and governor, and the stakeholders/lobbyists who advise them, should consider these principles in the development of a participatory stakeholder process for resolving the most vexing groundwater availability issues in the state, rather than continuing to defend the self-interests of one stakeholder group or set of values in preference to others.  Each ethical value or moral norm described in this article is as valid and worthy of protection as the others, and we all have an ethical responsibility to the larger communities we live and work in to join others and consider their needs in the process of resolving water availability disputes. That includes providing communities access to water based on achievable mitigation and public interest decision-making.  It also means preventing cumulative impacts to rivers and streams without effective and adequate mitigation.

The state already possesses workable water policy fundamentals in the Water Resources Act of 1971 (chapter 90.54 RCW) for the allocation of water, but has strayed from them over the last several decades to maintain consistency with a preference for instream protection before allocating water to people and communities. As a result of the state’s single-minded effort to protect instream flows, it has fallen into the trap of closing the state’s ground waters to the public, at enormous cost to people and water-short communities, without adequate public interest evaluation and with little hope of a solution.[18]  That missing public interest balance should be the focus of legislative and gubernatorial efforts to solve the water allocation problem, using stakeholders who agree to employ ethical principles to guide the decision-making process.

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The author is the principle of Law Office of Thomas M. Pors in Seattle.  For additional background concerning recent Supreme Court water cases and the conflict between instream flow regulation and groundwater availability, see the author’s other articles below.

Background on Hirst and Foster and the Lack of Water Availability in Washington

Hirst.  The Hirst decision affects water availability in rural areas by requiring counties to protect surface waters and to independently determine whether groundwater from permit-exempt wells is “legally available” before issuing building permits or subdivision approvals under the Growth Management Act (GMA).[19]  The Court previously determined that there is no “de minimus” impairment of minimum instream flow water rights, and that “any impact” whatever to closed streams is grounds for denial of groundwater permit applications.  Because a water right application is not required for permit-exempt uses of groundwater, county decisions on building permits did not previously consider legal water availability or impairment from permit-exempt wells, and counties relied on Ecology’s advice whether such wells were regulated or not by Ecology’s instream flow rules. In Hirst, Ecology advised Whatcom County and then the courts that permit exempt wells were not regulated by the Nooksack basin instream flow rule.  However, over 1600 exempt wells in the basin undoubtedly had a cumulative impact on instream flows of the Nooksack River and tributaries, which would be worsened by another 600 or more pending applications for new exempt wells. This proliferation of unregulated and unmitigated wells prompted a challenge by environmental organizations to Whatcom County under GMA.

The Growth Management Hearings Board determined that Whatcom County’s GMA Plan and development regulations failed to protect groundwater and minimum instream flows.  The Board decision was upheld by the Supreme Court, despite Ecology’s interpretation that the Nooksack Rule did not regulate exempt wells.  While the Court’s ruling applies only to Whatcom County, its interpretation of GMA is assumed to apply to other counties as well.  The Yakama Tribe has already sued Okanogan County claiming that Hirst requires the county to protect instream flows in the Okanogan and Methow River basins from impairment by permit-exempt wells.

Since Hirst, some counties have adopted building permit moratoriums for new groundwater-based uses, and others are requiring permit applicants to prove that groundwater is legally available or will not “impair” regulatory minimum flows and closed streams.  This could add over $10,000 to the cost of building a home yet still result in appeals and legal uncertainty for both property owners and counties.

Some banks have announced they will no longer issue mortgages in rural areas for properties with wells drilled after the Hirst decision.  The problem with legal availability, however, logically extends to all properties with wells drilled after the adoption of minimum flow rules, beginning in the 1970s, because the Court’s interpretation is that permit-exempt water supplies are interruptible if junior in priority date to a minimum instream flow, and thus not suitable for domestic water supply.  This is significant, because if the Legislature does not clarify the nature of permit-exempt and instream flow water rights and resolve this interruptibility question, new cases could arise that would impact permitting for home expansion or replacement and interrupt financing or refinancing for hundreds of thousands of homes state-wide.

Foster.  For urban and suburban areas with inadequate water for future growth, and for rural areas seeking approval of new mitigation banks to deal with Hirst issues, an equally problematic Supreme Court decision is Foster v. Dept. of Ecology and City of Yelm.[20]  In Foster, the Court reversed a water right approved by Ecology for the City of Yelm, despite an extensive regional mitigation plan designed to offset impacts from a new municipal well on instream flows in the Deschutes and Nisqually Basins. The Court found that Ecology had no statutory authority to allow out-of-kind mitigation for “legal impacts” to instream flow water rights and interpreted the “overriding considerations of public interest” (OCPI) statute as applying only to temporary water uses. It is rare that year-round water for water mitigation is available to offset the impact of any groundwater use on regulated surface waters.  As a result, the issuance of new municipal water rights and water rights changes, including the creation of mitigation banks to allow permit-exempt wells in rural areas, often depends on finding the unfindable: year-round water rights available to purchase for mitigation in all areas of a basin that are potentially impacted by a groundwater withdrawal. Expensive storage and engineered aquifer recharge options may be needed to offset small flow impacts that may not impede the environmental functions of regulated streams, instead of allowing habitat or aquatic function mitigation for impacts to habitat and other aquatic functions.  These legal and financial uncertainties have caused communities like Sumner and Spanaway in Pierce County to suspend or abandon plans for new wells needed to provide safe and adequate water to the populations they serve. It also dramatically increases the costs for public water systems to upgrade aging water sources in order to provide safe and secure water to the public.

[1] The state’s integration of instream flow protection into the Water Code and the prior appropriation doctrine utilize an ownership-based policy of exclusion, treating water as a commodity rather than a resource.

[2] General Assembly Resolution 64/292 of July 28, 2010; cited in Neelke Doorn, “Water and Justice: Towards an Ethics of Water Governance,” Public Reason 5 (1): 97-114 (2013).

[3] Human Rights Council Resolution 15/9 of September 30, 2010.

[4] James Martin Schramm, “Toward and Ethic of EcoJustice,” from Moral Issues and Christian Responses, at pp. 259-63, by Patricia Beattie Jung and L. Shannon Jung, 8^th ed. (2013).

[5] Dieter T. Hessel, “Religion and Ethics Focused on Sustainability,” Environmental Law Reporter, 39 ELR 10291 at 92 (April 2009).

[6] Jeremy J. Schmidt and Christiana Z. Peppard, “Water Ethics on a Human-Dominated Planet: Rationality, Context and Values in Global Governance,” WIREs Water 2014. doi: 10.1002/wat2.1043.

[7] “Finding Rural Domestic Water Solutions While Protecting Instream Resources,” Dept. of Ecology Publication 15-11-007 (August 2016). https://fortress.wa.gov/ecy/publications/documents/1511007.pdf

[8] Llamas, Ramon. Water and Ethics: Use of Groundwater. France: UNESCO, 2004, p. 24.

[9] Schramm, ibid, at 260-61.

[10] Llamas, et al, ibid, at 17-18.

[11] Id.

[12] Bruce Jennings, “Principles of Water Ethics,” from: Minding Nature: August 2009, Volume 2, Number 2.

[13] Chris Pitre and Sharon Haensly, “Water for rural development: tapping the Hirst ruling,” Daily Journal of Commerce, Sept. 28, 2017.

[14] See, e.g., Erik Smith, “Tribes Dumping Big Money into Legislative Campaigns,” Wash. State Wire, Sept. 5, 2012.

[15] Recent appeals by tribes and environmental organizations challenged Ecology’s authority to allocate water for out of stream uses when it conflicts with instream flow protection, which resulted in the Swinomish, Foster and Hirst decisions. These decisions protect instream flows but also impact water availability for people in rural and under-served urban areas of the state.

[16] Jennings, ibid.

[17] Jennings, ibid.

[18] It is ironic that progressive-leaning environmentalist politics have become most closely identified with this commodity driven view of “legal water availability” and that conservative-leaning rural property rights advocates have become most closely identified with the resource view of protecting human rights to access affordable water supplies.

[19] Whatcom County v. W. Wash. Growth Mgmt. Hr’gs Bd. (“Hirst”), 186 Wn.2d 648 (2016).

[20] Foster v. Dept. of Ecology, 184 Wn.2d 465 (2015).

[1] “Economic Impact Research of Exempt Wells,” HR2 Research and Analytics and BIAW (Sept. 7, 2017).

Legislators and the press need to be properly informed about the Hirst and Foster decisions and the interrelated history of instream flow rules and “legal availability” of groundwater.  The attached article provides an objective look at how instream flow rules have impacted water availability in the State of Washington, and why reform is necessary.  Six key points are discussed, followed by reasons that the Hirst and Foster decisions need to be fixed legislatively.  

1.  Instream flow rules were adopted without public interest evaluations and did not allocate water for future municipal or domestic needs.  This violated legislative policy at RCW 90.54.020.

2.  Older instream flow rules did not intend to regulate most groundwater or limit water availability for permit-exempt wells.

3.  Minimum flows are not immutable “legal rights” that are “injured” by any impact whatsoever, no matter how small, remote, or speculative, but that is how the Supreme Court inappropriately interpreted them in Foster.  

4.  The Supreme Court has no authority to close groundwater.

5.  Closing groundwater to new uses is not necessary to protect instream flows.

6.  Relying only on existing water rights as mitigation violates public policy, is a waste of public resources, and is usually impossible.

WHY IS A HIRST FIX NEEDED?

• The rural areas of some counties are already in moratorium due to Hirst because County governments don’t know how to make “legal water availability” decisions under RCW 19.27.097 for exempt well systems. In particular, they lack guidance and experience on how to determine impairment and mitigation adequacy. They also lack resources to handle litigation over the denial of access to water, on one hand, and regarding minute impacts to instream flow water rights, on the other.
• Rural constituencies are impacted and angry because there is no process leading to reasonable and feasible solutions.
• Even existing exempt-well water supplies developed after the adoption of instream flow rules in the 1970s and 1980s may not be legally adequate under Hirst.
• Banks may not lend money for the purchase or refinancing of rural homes with exempt wells until legal availability issues are resolved. Well over 100,000 homes are potentially affected statewide and rural development is at a standstill.
• Challenges to GMA plans and LUPA appeals on building permit decisions could clog the courts, lead to inconsistent decisions, and waste resources better spent on water and habitat investments.

WHY IS A FOSTER FIX NEEDED?

• The Supreme Court’s “legal” mitigation standard in Foster prevents new water rights and water right changes that are needed to authorize mitigation banks and new municipal wells, because year-round water-for-water mitigation is unavailable in most cases.
• Ecology needs flexibility to approve water right changes with some out-of-kind or out-of-season mitigation, or to adopt an impairment standard for instream flows and closed streams that allows de minimum impacts if otherwise in the public interest. Flexible mitigation standards and priorities has been approved by the Legislature for other aquatic resources (see chapter 90.74 RCW), and can be implemented effectively to prevent detrimental impacts to instream resources and values.
• Some tribes and environmental groups may be defending the Foster mitigation standard to control growth and land use, which should be left to state and local government through Growth Management Act planning and development regulations.

Click here for a complete copy of the paper.

Both GMA planning counties and non-GMA counties throughout the state are facing confusion about how to implement the Hirst decision.  Several counties have declared moratoriums until it is sorted out, which in turn has led to numerous calls for legislative fixes.  Given the plethora of regulatory ironies created by the decision, some of which are described in this article, these calls for reform deserve the Legislature’s attention in the upcoming session.

The Hirst decision not only affects those seeking building permits outside of public water system service areas, it also casts doubt on the legitimacy of existing exempt-well water supplies for tens or hundreds of thousands of rural and suburban properties built in Washington since the advent of instream flow rules.  If water is not “legally available” for a new permit-exempt well because of potential impairment of an instream flow water right created in the 1985 Nooksack Rule, then it isn’t legally available for other homes built with exempt wells since the adoption of instream flow regulations with similar exemptions (including the Snohomish, Cedar, Green, White-Puyallup, Nisqually and Deschutes basins).  Those homes could also be said to “impair” senior instream flow water rights and closed streams, and the Hirst decision gives ammunition to environmental groups or tribes who could seek to enforce the senior priority of minimum flow water rights against junior permit-exempt water rights.  The logical extension of the Court’s ruling also extends to non-GMA planning counties and basins with administrative stream closures but no minimum flow regulations. Thus, the cloud of uncertainty cast by the decision extends to most of the state outside of public water system service areas.

This article looks at the history of the Court’s self-described “instream flow jurisprudence” and asks whether the Court hasn’t expanded the scope of instream flow water rights and exceeded its constitutional role as an arbiter of cases with the Hirst decision.  A companion follow-up article will look at potential legislative fixes and provide compliance options for counties and developers of rural properties.

The Hirst Case and GMA’s Problematic Link to Legal Water Availability

The Hirst case is a local citizens’ challenge to Whatcom County’s comprehensive land use plan, contending that it failed to adequately protect surface and groundwater resources under the GMA,[2] which requires applicants for building permits necessitating potable water to provide evidence of an adequate water supply.  Evidence in the record showed that unregulated permit-exempt wells were contributing to water quality problems and causing further reductions of stream flow in parts of the county where streams were closed to further appropriation or their minimum instream flows were consistently not being met.  The Department of Ecology interpreted the Instream Resources Protection Program for the Nooksack River basin (Nooksack Rule), Chapter 173-501 WAC, as not restricting permit-exempt uses of groundwater, including new residential uses in rural areas.  Whatcom County relied on the Nooksack Rule, which had not been amended since its adoption, and on Ecology’s interpretation of the rule to assume that groundwater was still available for permit-exempt wells.  The Growth Management Hearings Board, however, held that Whatcom County’s comprehensive plan and development regulations failed to protect surface and groundwater resources contrary to GMA requirements at RCW 36.70A.070(5)(c).  Whatcom County appealed, and the Court of Appeals reversed the Hearings Board, holding that the County did not have an independent obligation under GMA to determine whether water was available for permit-exempt water uses and could rely on Ecology’s interpretation of the basin rule.[3]  The Supreme Court then granted a petition for review and reversed the Court of Appeals.

The Supreme Court’s decision is based on its interpretation of GMA and its history of liberally protecting minimum instream flows as water rights with no tolerance for exemptions, public interest exceptions, or arguments of “de minimus impairment.”  Against the background of the Supreme Court’s instream flow jurisprudence, discussed in more detail below, the Court interpreted GMA as creating an independent duty for counties to protect minimum flows and closed streams, beyond the protection already provided by Ecology’s rules.  The majority opinion appeared to regard permit-exempt wells as a loophole allowing impairment of surface waters rather than as an intentional exemption from those rules in order to make water available for domestic uses in rural areas.

The Court criticized the County’s reliance on the Nooksack Rule as unreasonable for two reasons: (1) the County knew that the proliferation of exempt wells was creating difficulties for effective water management, and (2) Ecology’s understanding about the connection between groundwater withdrawals and surface water has altered since the Nooksack Rule was adopted in 1985.  Justice Wiggins referred to the Nooksack Rule as an “outdated regulation” where minimum instream flows “are not met an average of 100 days a year.”  This characterization, however, is based on an utterly false premise that a river failing to meet is regulatory minimum flow is somehow being impaired by junior water rights or permit-exempt wells.  In fact, Ecology’s minimum flows for the Nooksack River were designed to be met only 50% of the time, because Ecology set those minimums on a 50 percent “exceedance percentage” based on historic flow levels.[4]  Thus, the fact they these flows haven’t been met an average of 100 days a year is not evidence that later exempt groundwater withdrawals having been impacting those flows.  To the contrary, it indicates that the flows have actually been higher than predicted by Ecology by an average of over 80 days per year (a 50% exceedance flow should not be met an average of 182.5 days per year).  This reflects a gross misunderstanding by the Hearings Board and the Supreme Court regarding how minimum instream flows are adopted and what it means (or doesn’t mean) when they are not being met.  It is also ironic that the Court would criticize the County’s reliance on the Nooksack Rule as inadequate to protect surface waters in the Nooksack basin, because the Nooksack Rule created the minimum flow water rights that the Court is not protecting.

The majority opinion criticized the County’s reliance on Ecology’s interpretation of the Nooksack Rule as “an unchecked reduction of minimum flows unless and until Ecology closes a basin to all future appropriations.” However, by substituting its own assumption that permit exempt uses necessarily impair minimum flow water rights and closed streams, the Court has stepped out of its judicial role and into the administrative role it believed Ecology was negligent in fulfilling.  The Court also failed to recognize that instream flow rules like the Nooksack Rule were intended to allocate waters belonging to the people of state, not only for environmental purposes but also for domestic drinking water and other needs.  The Nooksack Rule and many similar rules throughout the Puget Sound Basin intentionally exempted certain small rural groundwater uses that did not require water right permits,[5] thus providing that water would still be available for those uses despite the adopted minimum flows and stream closures.  Later instream flow rules, adopted after Ecology realized that more ground water was effectively regulated by minimum instream flows than they previously understood, included reservations for future out-of-stream uses, but the earlier rules continued to have exemptions for small domestic uses and were not amended by Ecology.  In Hirst, the Supreme Court has altered the scope of instream flow water rights to the detriment of water availability for other uses by using GMA to protect instream flows regardless of the intent of the instream flow rules to allow these small groundwater uses.

Ecology’s instream flow rules are imperfect and many like the Nooksack Rule are outdated, but they incorporate allocations of water that GMA was never intended to override.  There is no clear legislative intent that GMA, including its water availability provisions, was intended to override Ecology’s allocations of water to exemptions in its minimum flow rules for domestic uses.  The authority to amend those rules or to close groundwater due to lack of availability was delegated by the Legislature to Ecology through administrative rules with public notice and hearing requirements under the Administrative Procedure Act.[6]  The GMA obligations relating to water availability determinations, while adopted later, did not amend these rule-making requirements or delegations of authority.  The Supreme Court’s decision that counties have an independent duty under GMA to determine the legal availability of water, regardless of exemptions in the rules, has the effect of denying to the public the protections of the APA for changes to instream flow rules and their allocations of water to permit-exempt uses in rural areas.  The Court’s action in Hirst is tantamount to overriding Ecology’s rule-making authority by expanding the scope of one type of water right at the expense of water availability for others.  This disconnect between instream flow protection and water allocation for people is discussed further below.

Are GMA’s Rural and Environmental Goals Mutually Inconsistent?  

GMA doesn’t define how counties must protect water resources, but does require comprehensive plans to include a rural element that permits development at a variety of rural densities and that protects rural character by, among other things, protecting surface water and groundwater resources. RCW 36.70A.070(5).  These requirements may be mutually inconsistent, which implies the need for discretion at the county level for resolving those inconsistencies, and a process or policy for doing so.  In Kittitas County v. E. Wash. Growth Mgmt. H’gs Bd., 172 Wn.2d 144, 169, 256 P.3d 1193 (2011)(Kittitas), the Court held that RCW 36.70A.070(5) requires GMA plans to “include something to assure the provision of a variety of rural densities.”  In Hirst, the Court held that GMA plans must also protect surface and groundwater resources from the cumulative effects of permit-exempt wells.  It may not be possible to permit rural development of varying densities and economic circumstances without access to groundwater as a primary drinking water supply in rural areas.  It is also problematic to protect minimum flows and closed streams from the cumulative impact of numerous permit-exempt wells by continuing to issue building permits without understanding the resulting impacts to surface water and providing meaningful mitigation.  (In fact, the whole subject of impairment and mitigation relating to minimum flows and closed streams is fraught with policy issues relating to Ecology missteps, inflexible Supreme Court holdings, and legislative inaction, which are discussed further below.)  Instead of determining who is responsible for resolving these mutually conflicting GMA goals and under what legal authority and procedure (and then deciding whether that procedure had been properly followed), the 6-3 majority decision by Justice Wiggins strained to resolve the conflict itself in favor of one goal and against another.  That directed resolution in favor of protecting minimum flows at the expense of building permits for rural homes under existing regulatory exemptions is not the Court’s role.  Our complicated statutory scheme of managing water resources and development under multiple statutes delegates some of these responsibilities to Ecology with rule-making requirements and others to counties with GMA planning requirements.

GMA includes thirteen planning goals, but the Hirst decision cites only the environment goal, “protect the environment and enhance the state’s high quality of life, including air and water quality, and the availability of water.”  RCW 36.70A.020(10). This goal supports the “availability of water” but not only for the purpose of protecting the environment. It also supports the state’s high quality of life, which necessarily includes access to drinking water, especially in rural areas not served by public water systems. Throughout the Hirst decision, however, the concept of protecting “water availability” is interpreted as protecting water resources for minimum instream flows and closed streams – not as “water availability for people.” In the author’s opinion, if water availability decisions under GMA are required to be distinct from water allocations in instream flow rules, as the Hirst decision suggests, then Whatcom County should have been given more discretion to balance the availability of water for both environmental and drinking water purposes.  The Supreme Court, as it has been prone to do since Postema, defaulted to protecting instream flows rather than water for people.

Whatcom County argued that its comprehensive plan was consistent with GMA requirements because it was consistent with the Nooksack Rule, which is the state government’s authorized determination regarding the nature and level of protection of surface and groundwater resources in the watershed.  The Nooksack Rule is also Ecology’s determination that groundwater remained available for uses exempt from permitting under RCW 90.44.050, and that those uses were exempt from the minimum flows and stream closures adopted in the Nooksack Rule.  WAC 173-501-070(2).[7]  Previous GMA decisions by the Supreme Court recognized the dual roles of counties and Ecology relating to water resource management, in particular Ecology’s roles relating to the administration of the Water Code and assisting counties in their land use planning relating to water availability.  In Kittitas, the Court stated:

“While Ecology is responsible for appropriation of groundwater by permit under RCW 90.44.050, the County is responsible for land use decisions that affect groundwater resources, including subdivision, at least to the extent required by law. In recognizing the role of counties to plan for land use in a manner that is consistent with the laws regarding protection of water resources and establishing a permitting process, we do not intend to minimize the role of Ecology. Ecology maintains its role, as provided by statute, and ought to assist counties in their land use planning to adequately protect water resources. We note that the record demonstrates that Ecology in fact communicated with the County about concerns regarding the availability of water during its planning process.”  172 Wn.2d at 180.  (Emphasis added.)

In Hirst, however, the Supreme Court disregarded Ecology’s interpretation that the Nooksack Rule continued to allow permit-exempt wells.  Instead the Court presumed that additional permit-exempt wells would impair the minimum instream flows, and held that Whatcom County could not rely on Ecology’s interpretation but had an independent duty under GMA to protect the minimum flows.  This is another step in the Court’s “instream flow jurisprudence” to divorce minimum flow water rights from the rules that create them, with resulting impacts to water availability for people and future domestic, municipal and other beneficial uses of water.

Ultimately, whether the Hirst decision was an appropriate exercise of judicial power depends on how permit-exempt wells, stream closures, minimum instream flows, and the regulations that created them are interpreted and applied to water availability decisions by counties.  The majority and dissenting opinions in Hirst demonstrate a schism on this question that needs to be resolved by the Legislature because of its deep policy implications and complexity.  Otherwise, it appears that the state is ripe for a multiplicity of different and inconsistent approaches to the water/GMA conflict from county to county, resulting litigation in multiple forums and with inconsistent results, and growing frustration (if not anger) from rural property owners and counties with the state’s inability or unwillingness to resolve the conflict.

The Supreme Court’s Flawed Instream Flow Jurisprudence Has Derailed the Water Rights Permitting Program and Now Preys on Rural Water Availability 

The Hirst decision continues a line of cases beginning with the Postema decision[8] involving Ecology’s instream flow rules that have left the State in a virtual moratorium with respect to water rights permitting and exempt well development.  In Postema, the Court declared that minimum instream flows created by rule are water rights with priority dates that cannot be impaired by subsequent groundwater withdrawals, 142 Wn.2d at 81, and that there is no such thing as de minimus impairment.  Id. at 92.  With respect to streams closed to further appropriation in the instream flow rules, the Supreme Court held that “a proposed withdrawal of groundwater from a closed stream or lake in hydraulic continuity must be denied if it is established factually that the withdrawal will have any effect on the flow or level of the surface water.” Id. at 95 (emphasis added.)  “Any effect” taken literally could mean a computer model demonstration that continuous pumping of a well would result in one less molecule of water reaching any part of a stream that is closed, at any time in the future, which is an impossible standard to disprove.

In Swinomish Indian Tribal Community v. Ecology, 178 Wn.2d 571, 311 P.3d 6 (2013), the Supreme Court invalidated Ecology’s amended Skagit basin rule, in which Ecology used the “overriding considerations of public interest” (OCPI) exception at RCW 90.54.020(3)(a) to establish twenty-seven reservations of water for specified future uses, including exempt wells in rural areas and various municipal, domestic, irrigation, and stock watering uses. The Court held that once water had been allocated to minimum flows, it could not be reallocated to those out-of-stream uses, even if Ecology determined that it was in the overriding consideration of public interest to do so.  By declaring the amended Skagit Rule invalid, over 475 groundwater uses (primarily rural homes built since 2001 with exempt wells) established after adoption of the amended rule were instantly subject to uncertainty about the legal status of their water supplies, and hundreds more properties were devalued by as much as 90% by the Skagit County Assessor.  Over three years later, Ecology is still unable to provide mitigation to “legalize” all of those 475 homes.  Its ability to establish mitigation banks to solve the Skagit problem was then dealt a major blow by the Supreme Court’s next instream flow case.

In Sara Foster v. Dep’t of Ecology, City of Yelm and PCHB, 184 Wn.2d 465, 362 P.3d 959 (2015), the Supreme Court virtually eliminated the OCPI exception, holding that it cannot be used by Ecology to approve permanent water rights that would impair minimum instream flow water rights, even to the minutest degree.  The Court also held that out-of-kind mitigation could not be used to offset the “legal injury” caused to minimum flow water rights from any reduction in flow.  Coupled with the Swinomish decision, Foster elevated instream flow protection to unprecedented levels, making “legal water availability” a growth limiting factor in the most populated and fastest growing areas of the state. Then, as explained above, the Court’s Hirst decision extended this legal water availability problem to permit-exempt wells by imposing new duties on counties under GMA.

One by one, these decisions have effectively eliminated the availability of the people’s groundwater and run Ecology’s water rights permitting program off the rails.[9]  The Supreme Court’s instream flow jurisprudence is at odds with legislative policy and impacts water availability for people and the state’s growing economy and population.  It leaves Ecology helpless to fix these problems by amending instream flow rules or making water predictably available where and when needed through mitigation banking or water rights changes.  It also prohibits Ecology from creating new reservations of groundwater to meet the peoples’ needs for drinking water in basins with existing minimum instream flows.

The Court has defined inflexible and unrealistic impairment and mitigation standards to protect minimum flows and closed streams, standards that defy the environmental nature and purpose of minimum flows and stream closures.  Put simply, minimum flows are not legal rights, they are environmental rights.  They are created to protect the public’s interest in instream values, such as fish habitat, water quality, aesthetics and recreation.[10]  As a form of property right they represent a fundamentally different bundle of sticks than water rights diverted or withdrawn from a source and used for a specific beneficial purpose by the owner of a water right.  There is no constitutionally protectable legal right to a flow level that exists only 10 to 50% of the time.  Another significant difference is that out-of-stream water rights require findings under the 4-part test of RCW 90.03.290, including that water is available and its appropriation would not be detrimental to the public welfare.  In creating minimum flow water rights by rule, Ecology allocated water that was not available a large percentage of time, and did not make findings consistent with the public interest, i.e., with the maximum net benefits for the people of the state.

Minimum flows are therefore established in a manner very different from out-of-stream water rights under the Water Code. Because of their fundamental differences from other water rights, the Legislature should recognize that minimum flows and closed streams have unique values-based impairment and mitigation standards related to the functions and values of minimum flows rather than the legal fiction that they are injured by a missing molecule of water.[11] This would fix the unavailable mitigation problem resulting from the Foster decision, and enable Ecology and counties to predictably establish mitigation banks for future groundwater uses.

The Hirst Decision Expands a Major Disconnect Between Minimum Flows and the Peoples’ Right to Water, Which the Legislature Must Resolve

 The waters of the state belong to the people, RCW 90.03.010, and the allocation of those waters was directed by the Legislature to secure “the maximum net benefits for the people of the state.”  RCW 90.54.020(2); 90.03.005.  The maximum net benefits for the people cannot logically be met by rules or court decisions that allocate all the remaining waters to instream flow protection and leave no water available to meet human domestic needs, yet Ecology has steadfastly refused to make maximum net benefit findings before adopted minimum instream flow rules.[12]  Strangely enough, none of the instream flow cases decided by the Supreme Court have considered the maximum net benefits requirement or other public interest finding as a necessary foundation to closing groundwater or making it otherwise unavailable for domestic uses in order to provide maximum protection for instream flows.[13]  To the contrary, in Postema the Supreme Court stated that once minimum flows are set, “no statute … requires any further weighing of interests … and none requiring that economic considerations influence permitting decisions ….” 142 Wn.2d at 19-20.  In Swinomish, the Court interpreted minimum flow water rights as undiminished by maximum net benefits or OCPI. 178 Wn.2d at 595. Thus, minimum flows have been adopted by Ecology and expanded by the Supreme Court to deny water availability to the people without any consideration of the maximum net benefits for the people – a sure sign that the current state of water rights law in Washington State is unbalanced and skewed from its foundational principles.

Ecology has adopted minimum flow regulations for 27 of the state’s 60 designated water resource inventory areas, known as WRIAs. The earliest regulations were adopted in the 1970s and approximately half of them predate the advent of hydraulic continuity determinations and the Postema decision. These early rules were intended to protect instream flows and lake levels without allocating all available water in the watersheds or closing the ground water to future uses.  They were based on the understanding, communicated to the public, that most groundwater in the affected WRIAs would remain available for appropriation through the issuance of groundwater permits or via permit-exempt wells.[14]  As stated above, the Supreme Court’s interpretations of instream flow water rights has altered these water allocations by Ecology, effectively closing the groundwater in each of these 27 basins without any additional public notice, hearings, or other protections provided by the APA. This is troubling because closing all the groundwater of a basin in order to protect surface waters, without any attention to future out-of-stream water needs of the people, is clearly contrary to the legislative scheme for allocating and protecting the peoples’ water resources.  Simply put, the people have not been consulted in this backdoor appropriation of the peoples’ groundwater.

While Ecology’s minimum flow rules were not perfect and failed to allocate water according to the maximum net benefit for the people, the Supreme Court’s interpretation of minimum flow water rights has stymied Ecology’s efforts and those of local watershed planning groups to make the rules work for both people and fish. The Swinomish decision denying Ecology the right to adopt reservations based on OCPI threatened to topple not only the Skagit reservations but those in similar rules that followed lengthy watershed planning processes.  The 2016 Legislature stepped in to preserve the OCPI-based reservations in the Wenatchee and Dungeness rules by adopting ESSB 6513, after Ecology derailed a lengthy process to allocate a 5 cfs reservation in the Wenatchee Basin as a result of the Swinomish decision.  Other legislative actions may be necessary to preserve water allocations for out-of-stream uses affected by the Hirst decision, including the permit-exempt domestic exemptions in instream flow rules cited in footnote 5.

To summarize, property owners, developers, builders, and county governments have inherited a growing disconnect between instream flow protection and state policy to preserve potable water for domestic needs, with little to no guidance from the Court as to what they can or should do.  Legislators have been alerted to the confusion and injustice caused by the Hirst decision, and will likely be considering numerous approaches to fixing these problems in the upcoming session.

More Unresolved Issues Stemming from the Hirst Decision

 Another irony of the Hirst decision is that groundwater is not available for human consumption or commercial farming in rural areas but remains available for animals and non-commercial irrigation of lawns and gardens.  According to Dave Christensen, the Department of Ecology’s Water Resources Program Development and Operations Support Manager, the decision doesn’t restrict the ability to drill wells, and doesn’t apply to permit-exempt uses that don’t require a building permit.  For example, someone could drill a separate well for lawn and garden use and since they aren’t required to get a building permit and they don’t have to go to the county for approval, that well would be allowed.[15]  “Unless there is a county action required, such as a building permit, the Hirst decision does not directly affect other permit-exempt uses. … [A] well for stockwater would not be precluded by the Hirst decision.”[16] In other words, because the Hirst decision relates to the issuance of building permits, its impact is restricted to denying people in rural areas what may be their only reliable and affordable drinking water supply, and prohibiting the construction of homes and businesses without an alternative source of water.

The Stevens County Commissioners recently wrote to the Legislature that there is nothing to stop a homeowner from parking an RV on their rural property and connecting it to a permit-exempt well, because no building permit is required.  The lot owner could establish beneficial use for an exempt well water right that a county would then have to accept as a legal water supply for a building permit for that property, on the premise that, as between junior and senior water rights, only the superior courts can adjudicate priorities and impairment claims.  This is the sort of legal absurdity that may proliferate if the Legislature doesn’t take action to fix the problems outlined in this article.

The Supreme Court may have assumed that other alternative water supplies exist for rural areas, such as cisterns and mitigation banks, but such an assumption is premature and in most areas unrealistic.  The Court’s own “legal injury” mitigation standard in Foster is preventing Ecology from approving new mitigation banks due to the unavailability of year-round mitigation sources.  Representatives of the Department of Health Drinking Water Program have stated that cisterns and trucked water have not been adequately studied as replacement sources of drinking water and may create a host of unresolved public health issues.

Justice Stephens’ dissenting opinion in Hirst warns that “[t]he effect of the majority’s holding is to require individual building permit applicants to commission a hydrogeological study to show that their very small withdrawal does not impair senior water rights [including minimum flows], and then have the local building department evaluate the adequacy of that scientific data. The practical result of this holding is to stop counties from granting building permits that rely on permit-exempt wells.” This warning is well-founded, because several counties have already declared moratoriums until they can find a way to evaluate impairment determinations and determine what constitutes an adequate hydrogeological study. Even if they eventually accept such studies as a basis for making legal water availability determinations, county decisions can be appealed either by applicants or those seeking to protect instream flows like the plaintiffs in Hirst and Foster, filling the superior courts with litigation over the smallest impacts to instream flows and further taxing limited financial resources to manage water for both fish and people. Hopefully, the Legislature can find a better bipartisan resolution to the instream flow/water for people disconnect.

______________________________

Thomas Pors has been practicing law since 1982 and focuses on water rights permitting and transfers in the state of Washington, land use and environmental law, Endangered Species Act compliance, and real estate and regulatory work for water utilities, resorts, and local government.  He is a frequent author and lecturer on the subject of water rights. 

[1] Whatcom County v. Eric Hirst, et al., Wash. Supreme Ct. Case No. 91475-3 (slip opinion dated Oct. 6, 2016).

[2] Chapter 36.70A RCW. GMA’s water availability requirement for building permits is codified at RCW 19.27.097, which provides: “Each applicant for a building permit of a building necessitating potable water shall provide evidence of an adequate water supply for the intended use of the building. Evidence may be in the form of a water right permit from the department of ecology, a letter from an approved water purveyor stating the ability to provide water, or another form sufficient to verify the existence of an adequate water supply.”

[3] Whatcom County v. W. Wash. Growth Mgmt. Hr’gs Bd., 186 Wn. App. 32, 344 P.3d 1256 (2015).

[4] There are many possible methods for creating and quantifying minimum flows, but the primary method used by Ecology was to select a percentage of exceedance flows, historical flow numbers that represent a likelihood that future flows would be met on any given day.  These exceedance flows generally ranged from 50 to 80% of historical flows, meaning that on any given day there was a 50 to 20% chance that the minimum flow would not be met. The Nooksack Rule minimum flows generally mimicked 50% exceedance flows, meaning that they were predicted not to be met 50% of the time.  Nooksack Instream Resources Protection Program, Appendix A – Hydrographs, WA State Dept. of Ecology (November 1985).

[5] See WAC 173-501-070, 173-507-050, 173-508-080, 173-509-070, 173-510-070, 173-511-070, 173-513-070, 173-514-060, and 173-515-070.

[6] The adoption or amendment of minimum instream flows and the closure of groundwater must comply with rule-making requirements of the APA at chapter 34.05 RCW.

[7] The Nooksack Rule exemption provides: “Single domestic, (including up to 1/2 acre lawn and garden irrigation and associated noncommercial stockwatering) shall be exempt from the provisions established in this chapter, except that Whatcom Creek is closed to any further appropriation, including otherwise exempted single domestic use. For all other streams, when the cumulative impact of single domestic diversions begins to significantly affect the quantity of water available for instream uses, then any water rights issued after that time shall be issued for in-house use only, if no alternative source is available.”

[8] Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 81, 11 P.3d 726 (2000).

[9] See Thomas Pors’ article, “Supreme Court Bruises Department of Ecology in Foster Opinion,” on the author’s website at http://www.porslaw.com/wp-content/uploads/2015/12/Supreme-Court-Bruises-Department-of-Ecology-in-Foster-Opinion-Tom-Pors-12-7-15.pdf

[10] See RCW 90.54.020(3)(a) and the purpose section of minimum flow rules, such as WAC 173-501-020.

[11] The differences between minimum flows and other water rights and case for a values-based impairment and mitigation standard is made in Thomas Pors’ article, “Potential Legislative and Regulatory Solutions to the Water Availability Train Wreck,” on the author’s website at http://www.porslaw.com/wp-content/uploads/2016/01/Potential-Solutions-PORS.pdf

[12] See POL-2025, “Water Resources Program Policy/Interpretive Statement on When to Perform a Maximum Net Benefits Analysis” Ecology, Jan. 31, 2005.

[13] This argument has not effectively been presented to the Supreme Court in any of the reported instream flow cases, but could come up for consideration in Bassett, et al., v. Ecology, an APA challenge to the validity of the Dungeness Rule, if appealed from a December 2, 2016 decision by the Thurston County Superior Court.

^[14] The Puyallup River Basin IRPP, adopted in March 1980, states: “it is believed that there are adequate groundwater resources to support future growth forecasts” and “future growth in demands for municipal and industrial water will fall upon groundwater supplies.” In the Snohomish River Basin IRPP, adopted in August 1979, alternative sources of groundwater were described as mitigation for any adverse effects of regulating MIFs.  The Chambers-Clover Basin IRPP, adopted in November 1979, states that “deeper aquifers appear to contain large quantities of water and do not readily affect surface waters.” The Green-Duwamish IRPP, adopted in April 1980, states: “Groundwater remains open for future appropriation in all the Green-Duwamish River Basin.  It is anticipated that groundwater will be relied upon in many instances where surface water rights will not be available due to this program or because of water quality considerations.”  There are many other such statements in many instream flow rules.

[15] The Water Report, “Interview with Dave Christensen, Washington State Department of Ecology,” Issue #153, Nov. 15, 2016, at p. 10.

[16] Id.

ESSB 6513 aims directly at the impact of Swinomish on reservations of water adopted by Ecology using OCPI authority (overriding considerations of public interest). In Swinomish v. Ecology, 178 Wn.2d 571, 602, 311 P.3d 6 (2013), the Supreme Court invalidated the amended Skagit River Instream Flow Rule (Chapter 173-503 WAC) because the Department of Ecology had adopted reservations of water for future uses (including exempt wells for domestic water supply) using OCPI authority after adopting minimum instream flows in the same basin, a practice the Court found to violate the prior appropriation doctrine and the narrow purposes of OCPI. Similar reservations were adopted by Ecology before the Swinomish ruling in an amended Wenatchee River Instream Flow Rule (WAC 173-545-090) and in the Dungeness River Instream Flow Rule (WAC 173-518-080).  After the Swinomish decision, Ecology notified local governments in the Wenatchee basin that it could no longer rely on the validity of the reservations at WAC 173-545-090, and that Ecology would stop processing their applications for water rights allocating the reservations. That put a stop to years of effort to obtain additional water rights for the exempt well domestic uses in Chelan County and for the cities of Leavenworth and Cashmere.  In the Dungeness River basin, Ecology adopted an instream flow rule in 2012 that effectively closed ground water to new uses but for a limited reservation of groundwater at WAC 173-518-080, which was also adopted using OCPI authority. The validity of the Dungeness Rule has been challenged in the Bassett v. Ecology case pending in Thurston County Superior Court. ESSB 6513 tries to solve the OCPI-based reservation problems in these two rules by virtue of a legislative declaration that those specific reservations are “consistent with legislative intent and are authorized to be maintained and implemented by [Ecology].” It is questionable whether such a legislative declaration is an adequate legal defense to these reservations because the Supreme Court held in the Foster v. Yelm case last year  that OCPI could not be used to authorize permanent water uses that would otherwise be inconsistent with an adopted minimum instream flow water right. Sara Foster v. Dep’t of Ecology and City of Yelm, Wash. Supreme Court Case No. 90386-7, Slip Opinion dated October 8, 2015. However, ESSB 6513 provides new authority and legal cover for Ecology to process applications allocating the Wenatchee and Dungeness reservations unless or until the adequacy of ESSB 6513 is challenged.

ESB 6589 directly addresses water availability issues created by the Swinomish decision in the Skagit basin, which includes portions of Skagit and Snohomish counties. The bill requires Ecology and other listed stakeholders to study the feasibility of using “effectively sized water storage” to recharge the Skagit River basin when needed to meet minimum instream flows and provide noninterruptible water supply for users of permit exempt wells in the basin. Ecology is required to submit the report to the legislature’s standing committees on water resources and fiscal issues by December 1, 2016.

SSB 6179 is a water banking bill that amends chapter 90.42 RCW to require specific information be maintained on Ecology’s website about water banks, which is essentially an effort to create more transparency and public accountability for water banks set up to provide alternative sources of mitigation for new exempt well uses and water rights in closed basins. The schedule or table required for each water bank must be maintained on Ecology’s website and updated quarterly, and operators of water banks are required to furnish the information to Ecology upon request.

Click here for the executive summary of “Potential Legislative and Regulatory Solutions to the Water Availability Train Wreck.” 

Despite the comparative abundance of manageable surface and groundwater in the State of Washington, it’s water supply train has jumped the rails, making water legally unavailable for new uses wherever minimum flows have been established by regulation. The health of suburban and rural communities is being sacrificed to protect minimum instream flows in a manner that is unnecessary, unwise, and unsustainable. This article explains why and suggests both regulatory and legislative changes to accomplish water availability for both people and the environment, as originally intended by the Legislature in the Water Resources Act of 1971.

Abstract: The current regulatory scheme for protection of minimum flows has evolved into an inflexible “legal impairment” standard that is inappropriate for the protection of environmental rights. It prevents the use of science and ingenuity to solve water allocation and protection issues by restricting access to a common and vital resource in contravention of state legislative policy. The status quo has produced excessive procedural burdens and costs, artificial water markets, and legal uncertainties for new and changing water uses in a growing economy. That is not a status quo the State should be proud or protective of. Active resource management, utilizing legal standards matched to the rights they are protecting, would do a better job of allocating and managing water, including for protection of healthy fisheries.

To download and read the complete article, click here.

*This article was originally presented by the author on July 27, 2015 at LSI’s Water Law in Washington seminar. It has been updated to incorporate new case law (Foster v. Ecology) and new thinking about regulatory and legislative solutions.  Caveat: the views expressed in this article are the author’s alone and not representative of or in pursuit of any particular client’s goals.

The Foster decision is a wake-up call for legislative reform of the “legal water availability” problems created by the manner in which instream flow rules have been adopted, applied and interpreted over the last forty-plus years. The original instream flow rules were never intended to regulate all groundwater in the state, which is a principal reason Ecology never balanced the need for water for both instream and out-of-stream uses (as required by the Legislature) before adopting minimum flows as water rights. In the mid-1990′s Ecology extended the minimum flow rules and stream closures to all groundwater without public notice or rulemaking, and has since relied upon the “overriding considerations of public interest” (OCPI) exception to authorize new water rights, water right changes, and exempt well usage in basins with instream flow rules. After the Foster and Swinomish decisions, it is clear that the use of OCPI was a failed strategy, and the legal validity of Ecology’s instream flow rules is called into question.

Stay tuned on this website for more developments concerning the Foster decision and calls for regulatory and legislative reform. The public is invited to share its views regarding these issues on my blog at this link: http://tomswaterblog.wordpress.com/

 Introduction

Department of Ecology officials and stakeholders have been meeting publicly for the last year to discuss post-Swinomish water allocation solutions for rural areas, but their efforts have been stymied by the lack of consensus on legislative or other solutions.[2] New ideas need to be explored and vetted to move beyond common misconceptions and a dysfunctional status quo. The state’s minimum instream flow rules (MIFs) protect flow numbers and probabilities rather than instream values and qualities. In adopting MIFs, Ecology failed to balance the allocation of water between instream and out-of-stream uses as directed by the legislature. A judicially-created impairment standard for MIFs fails to recognize the distinction between MIFs and appropriative rights, and resulted in the accidental closure of entire basins to new water uses.

Resistance to changing the status quo is significant, ranging from the correlation between instream flow protection and the protection of treaty fishing rights, sensitivities to altering the prior appropriation system, the shear complexity of the issues, and anti-growth objectives of some MIF proponents. In the author’s opinion, the resistance to alter the status quo is based on misconceptions and a lack of stakeholder discussion about alternative standards that could yield positive consequences for both instream values and water supply for domestic, agricultural, and municipal uses.

Click here to download a pdf of the complete article

Abstract: The current inflexible impairment standard for protection of minimum flows in the state of Washington prevents the use of science and ingenuity to solve water allocation and protection issues by restricting access to a common and vital resource in contravention of state legislative policy. The regulatory status quo has produced excessive procedural burdens and costs, uncompensated externalities, artificial water markets, and legal uncertainties for new and changing water uses in a growing economy. That’s not a status quo to be proud or protective of. Active resource management based on empirical evidence, utilizing more flexible legal standards, best available science, and realistic policy balances, would do a better job of allocating and managing water, including for protection of healthy fisheries.

What is the Purpose and Policy for Protecting Instream Flows? 

Protecting instream flows to preserve or enhance the functions and values of rivers, streams and lakes is one of the predominant policy goals of Washington’s various water resources statutes.  In 1969 the legislature authorized Ecology to adopt rules establishing “minimum flows and levels” to protect fish, game, birds, other wildlife resources, and recreational and aesthetic values. RCW 90.22.010-020. In 1971 the legislature mandated the protection of the natural environment by preserving “base flows” of perennial rivers and streams “necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values.” RCW 90.54.020(3)(a). In this environmental era, the state shifted from a pioneer policy of maximum utilization of resources to managing water resources for the “maximum net benefit of the people of the state.” Without question, the people of the state benefit in numerous ways from the protection of instream flows.[3] The real question, however, is whether the state appropriately implemented the fundamentals of protecting and managing water resources for the maximum net benefit, or has it protected flows in a manner that unnecessarily excludes other uses or sound principles of water resource management. If the latter, how can four decades of instream flow protection be fixed? These are the post-Swinomish questions.

How do Washington’s Instream Flow Rules Diverge from State Policy?

Ecology adopted instream resource protection regulations using a methodology for setting and protecting MIFs that exceeds the legislature’s mandate to preserve “base flows” and water resources according to the maximum net benefits for the people of the state. Rather than allocating waters actually present in rivers and streams, or identifying instream values to protect against subsequent water right applications, Ecology adopted MIFs at numerical levels that “would be beneficial for fish if those flows were present in the stream,”[4] unlike other appropriations that cannot exceed the availability of water. These aspirational numerical flows are then given the status of water rights with priority dates by operation of RCW 90.03.345. New water right permits, water right changes, and new exempt water uses are restricted from impairing those MIF water rights, which by design are not met at the time of their adoption up to 90% of the time.[5] Thus, rather than preserving base flows and allocating the remaining flow between MIFs and other uses according to maximum net benefits, Ecology adopted aspirational MIFs knowing that actual stream flows were already insufficient to satisfy them. This effectively closed the basins to new appropriations because any new effect on the rivers and streams would automatically worsen the probability or degree of those unmet aspirational flows. It is often overlooked (or misrepresented as a sign of already over-appropriated rivers and streams) that MIFs which are not consistently met were designed that way from the outset.

If there was an impairment standard matched to the unique nature of these aspirational MIF water rights, Ecology could still allocate waters for other uses while protecting the values inherent in the MIF water rights. However, in Postema v. PCHB,[6] the Washington Supreme Court established a zero tolerance impairment standard that treats MIF water rights the same as appropriative water rights.[7] As a result, all other new consumptive uses of water in a watershed are virtually foreclosed after the adoption of MIF rules, unless strict water-for-water mitigation standards can be met. This general ground and surface water closure was not foreseeable when the first generation of MIF rules were adopted prior to 2001. It occurred without public notice or a rulemaking specific to the ground waters being closed to protect MIFs, in apparent contradiction to RCW 90.54.050. There was no “maximum net benefits” evaluation of this allocation of all available waters in a basin to instream flow protection while foreclosing future allocations of water to domestic and other uses.[8] As of the date of this article, neither the legislature nor the courts have reviewed whether these MIF flows exceed Ecology’s authority to allocate water according to legislative policy declarations in the Water Resources Act, including the maximum net benefits policy.[9]

What are the Contemporary Consequences of this Problem?

Since the Washington Supreme Court’s Postema decision, Ecology has had to rely on various disappearing tools to make water available for new out-of-stream uses in basins with MIF rules, including for rural domestic supply from exempt wells. In several basins it amended instream flow rules to adopt reservations of water for future out-of-stream uses that were exempt from the effect of the MIF rules, using the “overriding considerations of public interest” exception (OCPI) at RCW 90.54.030(a). One such set of reservations in the 2006 amended Skagit Basin MIF Rule, Chapter 173-503 WAC, was overturned by the Supreme Court in the Swinomish case, where the Court found that Ecology had no authority to adopt reservations using the OCPI exception after MIFs were already adopted in a basin.[10] Since the Swinomish ruling, Ecology informed local governments in the Wenatchee Basin that a similar set of reservations in the Wenatchee Basin MIF Rule, Chapter 173-545, would not survive a legal challenge and to cease processing applications to allocate the reservations to several local governments and rural areas in need of water. The lesson of Swinomish is that once a MIF rule is adopted, it is too late to balance the needs for water between instream and out-of- stream uses. That leaves rural areas in places like Skagit and Wenatchee Counties, and growing communities and rural areas statewide, with few options other than purchasing existing water rights, which may not be available.

The Supreme Court’s restriction of the OCPI tool has also impacted water rights permitting. Since the Postema case, Ecology has approved dozens of water right applications using OCPI to authorize some portion of a mitigation package that wasn’t strictly in-kind, in-place, in-time, water for water mitigation of impacts to MIFs or closed streams. Such findings were criticized by tribes and environmental groups, but after Swinomish they have been challenged as exceeding Ecology’s authority. One such finding is currently being reviewed by the Supreme Court. In Foster v. Yelm, Ecology approved a regional mitigation plan that included some out-of-kind habitat mitigation where in-kind mitigation was unavailable, finding that OCPI applied. The PCHB and Thurston County Superior Court upheld the OCPI finding and resulting water right,[11] but environmental groups appealed the decision to the Supreme Court. Oral arguments were held on May 21, 2015, and a decision is pending.[12] The case challenges Ecology’s authority to approve a water right permit relying to any degree upon out-of-kind mitigation.

The trend toward elimination of exceptions and work-arounds to the MIF rules, including reservations and out-of-kind mitigation, pushes the process of allocating water for new uses to extremes that were not likely anticipated by the legislature in 1971 when it adopted the fundamentals in chapter 90.54 RCW. Rural property owners in the Skagit basin, for example, cannot obtain building permits for single family homes until mitigation projects beyond their control are implemented by Ecology and third parties, prompting lawsuits against county government and potential constitutional challenges.[13] Without a legislative solution, Ecology and many local governments must rely on expensive and incomplete mitigation solutions that penalize certain sectors of society and enrich others. Rural landowners, farmers, and communities without reserves of inchoate water rights are being forced by the continuation of the status quo to subsidize the purchase of private water rights and establish mitigation banks, which encourages speculation in water rights at the expense of the public and removes farm land from irrigation. Many believe that these funds would be more effectively spent on regional conservation, habitat measures and water quality mitigation. Many people, including legislators and Ecology officials, also believe that the level of administrative burden of enforcing MIF protections as against minute impacts is excessive and unsustainable.

Restated, the consequence of protecting aspirational flow numbers as water rights, instead of protecting instream functions and values, is an inflexible water allocation system built on false assumptions, inadequate public disclosure, and the failure to accomplish other fundamental state policy objectives for the allocation of state waters.

What’s So Bad about the Status Quo?

In my opinion the inertia behind the status quo, including resistance to finding solutions, is largely due to a broad misconception that the status quo supports the goals of Native American tribes and environmental groups, who may possess sufficient political capital to block legislative reforms. Why bother trying to fix it legislatively if it will blocked from passage or vetoed? The misconception is that an inflexible numerical MIF standard is the best way to protect or enhance the instream values for which MIFs were adopted. First, using the status quo impairment standard to prevent new uses protects only the numerical, aspirational MIFs from becoming somewhat less probable than the probability level of their creation, without requiring evidence that any instream value (such as fish habitat) would be impacted, or allowing mitigation for the impacted value rather than the flow. Because the impairment standard regards “any effect” on a probability of numerical flow as requiring denial, there is no consideration of an application’s ability to manage water or provide mitigation in a way that offsets or improves any instream values, such as water temperature or fish habitat. This leaves Ecology in the position of denying applications that have no appreciable impact on, or that could enhance, instream values. The ability to provide habitat or water quality enhancements is magnified for regional or county-wide projects, but the status quo does not give watershed planning groups, county governments, other resource management agencies, or innovative property owners/applicants a pathway for creating available water for new uses by improving instream values. The current inflexible numerical impairment standard does not permit this kind of trade-off, even though an effect on the probability of flow is itself only a probability, not a certainty, of an effect on instream values.

Second, aspirational MIF rules and the inflexible numerical impairment standard that stops growth have already caused the legislature to consider numerous bills to fix the problem, thereby upsetting the status quo or leaving it in jeopardy. This trend will continue as additional basins face the kind of issues seen recently in Skagit, Kittitas, Whatcom, and Clallam Counties.

Third, what about the externalities, or hidden costs, of the status quo on communities and rural property owners, including the agricultural community and businesses and trades based on agricultural services, home construction and sales? Assuming that the status quo (closure of water resources to new uses) is advantageous for citizens who live in water-abundant communities and like to travel, fish and recreate in areas with protected natural rivers and streams, is it ethical to transfer the cost of closing the resource to those who lack access to it, regardless of the ability to condition that access appropriately to avoid overuse and degradation? Access to water is widely considered to be a fundamental human right. Shouldn’t there be compensation paid by the public to those denied access to a common resource in the name of protecting public values? Our bedrock legal concepts of due process, equal protection, and proscription against takings without just compensation are seemingly violated by artificial closures and inflexible impairment and mitigation standards. It’s only a matter of time until these legal rights are asserted against state and local government by those most-affected by the status quo.

Finally, Ecology is tasked by the legislature with not only protecting instream values, but with enhancing them where possible. RCW 90.54.020(3). If the answer to an application or an exempt well water use that might impact a probability of a numerical flow has to be “no,” Ecology is stymied in its ability to approve such applications and uses that could be conditioned to enhance the quality of river and streams. Thus the status quo is not helping Ecology accomplish the mandate to enhance instream quality.[14]

Why wouldn’t Native American tribes and environmental groups support the concept of conditioning water rights or exempt well usage to maintain or improve instream values? Certainly there is considerable inertia behind the status quo and fear that creating new standards will cause a backsliding of instream protection.[15] Such fears, however, prevent the possibility of improving the quality of rivers and streams through a more flexible, values-based standard.

If allowed to persist, the misconception that the status quo adequately protects instream values will kick the problematic status of flawed numerical MIFs and impairment standards forever down the road, toward more piecemeal litigation, over-allocation of public funds and administrative energy on minute impacts, discrimination against rural land owners and land uses, an unfunded shifting of regulatory burdens from state to local governments, and creation of artificial markets for water rights that divert funding away from fish habitat restoration and innovative water resource management techniques. Stakeholder, agency, and legislative recognition of this fact could speed discussion and development of long-term solutions that are more just, reasonable, and efficient than perpetuation of a flawed status quo.

The author proposes an alternative method of determining how instream flows and closed streams are impacted by new or changed water uses, and how those impacts can be mitigated. It would require legislative authorization to make these changes in basins with existing numerical MIF rules. Before describing the alternative, it is necessary to describe how MIF water rights differ from appropriative water rights, including how and why they merit a unique impairment standard.

How are Instream Flow Water Rights Different than Appropriative Water Rights?

Contrary to the Supreme Court’s assumption in Postema and Swinomish, MIFs are different by their nature than appropriative rights. The Pollution Control Hearings Board (PCHB) has recognized that MIFs are regulatory, with a different bundle of sticks representing different aspects of a property right than water rights diverted or withdrawn from a source, used for a specific purpose, and subject to a set of conditions and qualifications.[16] As with other regulations but unlike the priority system for appropriative rights, a MIF becomes a condition of all water right permits issued after the effective date of the rule, even if the priority date of the permit is senior to the MIF rule.  To the contrary, the priority of appropriative water rights as against all other appropriative water rights is determined solely by the date of application. RCW 90.03.340.

Another significant difference is that appropriative rights require findings under the 4-part test of RCW 90.03.290 that water is available and its appropriation would serve the public interest. In creating MIFs, Ecology allocated water that was not available a large percentage of time, and Ecology did not make findings that MIFs would serve the maximum net benefits. MIFs were therefore established in a manner very different from appropriative rights under the Water Code.[17]

The Supreme Court acknowledged that MIFs can be modified by rule just as they are adopted by rule, and not only by increasing the flow.[18] In OWL v. KGH last year, the PCHB rejected arguments that numeric MIFs are “perfected water rights” that must be protected irrespective of Ecology’s authority to modify MIF rules. While the Supreme Court in Postema and Swinomish recognized that a MIF established in rule and a water right authorized through the permit process both have a priority date and are afforded protection from impairment by later issued or junior rights, they also recognized that other attributes are different. An appropriative water right is a vested property right for the water applied to beneficial use, and as such, it is alienable, transferable, and afforded the constitutional protection of due process and the prohibition against takings.[19] MIFs operate in a regulatory manner and do not have these same attributes. MIFs are tailored to address the instream flow needs for each basin and can and should be modified to ensure the rules are in accord with watershed plans and fundamental water resources principles.[20]

The legislature implicitly recognized a distinction between MIFs and appropriative rights in 1997 when it mandated an end to the moratorium on issuing new water rights from the Columbia River.[21] Ecology complied by amending the Columbia Basin MIF rules to create an alternative case-by-case consultation process for permits issued after July 27, 1997, the purpose of which was to evaluate impacts on fish from a proposed permit.[22] In other words, WAC 173-531A-060 authorized a values-based approach to determining impacts and mitigation on fish as an alternative to the numerical MIF rules. The implementation of this regulation was challenged last year in OWL v. KGH by environmental groups who opposed Ecology’s authority, even under the Columbia Basin rules, to authorize out-of-kind mitigation for new water rights impacting an MIF. The PCHB held that Ecology did possess the authority to allow out-of-kind mitigation. However, because of the lack of legislative guidance on impairment of MIFs, the PCHB’s strained attempt at finding a values-based approach that complied with Swinomish was enough to prompt the applicant to propose accepting the MIF conditions instead.[23]

Once before the PCHB opened the door to the evaluation of MIFs and stream closures differently than impairment of appropriative water rights. However, the threat of litigation to protect the status quo has apparently squelched this effort. In Squaxin Island Tribe v. Ecology (Miller Land & Timber) the PCHB reconciled the groundwater standard contained in the Deschutes River MIF at WAC 173-513-050 (“clear adverse impact upon the surface water system”) with the Postema standard for impacts to closed streams under the availability prong of the four-part test (“any effect on the flow or level of the surface water”) to create a values-based impairment standard as follows:

“[G]roundwater withdrawals in the Deschutes Basin constitute a clear adverse impact and are subject to that WAC chapter’s provisions, if the withdrawals produce any effects which adversely impact the values identified in WAC 173-513-020. If the Squaxin Tribe is able to demonstrate such an impact, then the water is not available within the meaning of RCW 90.03.290 and the groundwater permits at issue must be set aside. Consistent with the finding in Postema, the terms “verified” and “clearly” as used in this rule mean ascertainable through best available science.”[24]

This attempt at melding the Postema impairment standard with the values underlying an MIF rule failed to catch on as a basis for Ecology decisions on water right applications, but it could serve as a model for a legislatively-adopted impairment standard for MIF rules and closed streams.

What are the Potential Solutions to the Problem?

1. Values-Based Impairment and Mitigation Standards for Instream Flows.

As demonstrated above, there is precedent from the legislature and PCHB for a values-based approach to protecting instream flows and preserving protected fish species. This new approach begins with the recognition that MIFs are different than appropriative water rights, therefore to serve the maximum public interest the evaluation of impacts and mitigation needs to match the nature of these unique water rights.

Methodologies need to be developed for protecting instream flows by identifying and protecting instream qualities and values from degradation while opening the door to enhancing those values and providing new water uses for domestic, agricultural and other beneficial uses of water. Best available science should be used to substantiate findings of impact to values and mitigation of those impacts. This can lead to better results for instream values without closing entire basins to new water rights and exempt water uses. For example, enhancing streamside habitat to improve temperature, shading and holding areas for migrating salmon may accomplish far more protection of instream values than insisting on bucket for bucket in-kind, in-place, in-kind water replacement as with the current standards. Statutory authority should be created to authorize alternative standards for determining impairment and mitigation of instream values, so that MIF rules do not function solely as a means for protecting the status quo and preventing development.

There is precedent for values-based water resource mitigation standards in our laws protecting wetlands and water quality. RCW 90.74.020 allows for compensatory mitigation approaches and recognizes the efficacy of out-of-kind/out of place mitigation in some scenarios. Ecology is required under this statute to “fully review and give due consideration to compensatory mitigation proposals that improve the overall biological functions and values of the watershed.” This approach works in the wetlands context because wetland functions and values aren’t protected by proxy water rights that are themselves protected by the prior appropriation impairment standard. The use of wetland classification systems, setbacks, buffers, and monitoring programs are examples of the ability to identify differing degrees of impact and mitigation and to provide for margins of safety and predictability.

The focus of protecting public water resources should similarly shift to identifying and protecting the functions and values of instream flows instead of using proxy water rights and a judicially-defined impairment standard that treats de minimus impacts to instream values the same as impairment of senior water rights.[25] This alternative would allow more flexibility and opportunity to manage water resources for new and more efficient uses while creating opportunities to restore and enhance watershed functions on a watershed level. It would provide tools to identify and finance mitigation projects, allowing valuable public and private resources to be used to restore fish habitat, water quality and other watershed functions instead of creating artificial water right markets that eliminate beneficial uses of water instead of restoring watershed functions.

One way to accomplish a values-based approach is to statutorily define “impairment” of a MIF or closed stream as “a proposed use of water that appreciably impacts or decreases a fundamental instream value which the MIF or stream closure was adopted to protect.” Best available science should be required to support such determinations. If an impact on one or more instream values is determined, mitigation could be proposed by an applicant to offset that impact (e.g., by providing fish habitat enhancements or recreational access), without necessarily requiring offset of the effect of a new water use on the probability of an aspirational flow.

An important benefit to defining impairment of a MIF is that it does not necessitate invalidating or amending existing MIF rules. They can remain on the books as proxies for instream values, including the importance of flow itself as a component of fish habitat and water quality. MIFs will continue to serve as important conditions on existing water right permits, and such conditions may be appropriate either outright or as mitigation triggers for new applications in the future.

A MIF-specific impairment definition and values-based mitigation standard does not need to replace numeric MIFs or the Postema standard, but could be authorized by the legislature as an alternative to the application of the current MIFs and standards. This is essentially what the legislature and Ecology did with the 1998 amendments to the Columbia River MIFs. The PCHB has recognized the legality in principle of this alternative, and has opened the door to protecting MIF values as an alternative to protecting aspirational flow numbers. In OWL v. KGH, the PCHB concluded:

Thus, while the numeric flows of WAC 173-563-040 do not apply to the Permit, the values that gave rise to the permit in the first instance must be protected. In other words, Ecology cannot issue a permit pursuant to the consultation process that impairs the instream flow values that stand behind the established minimum instream flows, and Ecology must demonstrate how such values are adequately protected and how the water right associated with those values is not impaired. This conclusion is consistent with the Board’s parallel conclusion above, that with the consultation process, Ecology is bound to ensure base flows in the Columbia River are protected. In the absence of a showing by Ecology that the conditions of the Permit protect base flows necessary for the preservation of the instream flow values, the Board cannot assess whether the mitigation conditions offered by an applicant for a water right address the recognized depletion of water in the Columbia River (or any other river) by the permit at hand, or in perpetuity and cumulatively.[26]

This ruling highlights the difficulty of changing or bypassing impairment/mitigation standards without affecting the fundamentals of water resource policy. It also demonstrates the opportunity for accomplishing the task. The goal is to find suitable standards and practices, adopted by the legislature to avoid future litigation, that result in real and effective mitigation of impacts on instream functions and values. One way to find the right projects and compromises on a watershed level is to authorize watershed planning units to propose and Ecology to adopt alternative standards to existing MIFs, using protection of functions and values in place of numerical flows. The legislature could authorize and fund one or more pilot projects to develop such standards and put them into practice. Planning units in already impacted watersheds including the Skagit, Nooksack, Wenatchee and Dungeness WRIAs may be a good place to start this process, which would involve stakeholders from across the spectrum of water users.

2. Mitigation Flexibility without New Impairment Standard.

A less universal and less useful alternative to defining impairment of a MIF is for the legislature to authorize additional means of mitigating or avoiding impacts to MIFs, without changing the impairment standard. This alternative would be harder to square with Postema and Swinomish, and could lead to litigation or constitutional challenges based on the concept that MIFs are the same as appropriative water rights and must be protected from impairment in the same manner. Nevertheless, the legislature can authorize or direct Ecology to consider alternatives to in-kind, in-place, in-time mitigation of impacts to MIFs. RCW 90.03.255 and 90.44.055 already require Ecology to consider the provision of water impoundments and “other resource management techniques” as a means of offsetting or avoiding impacts to MIFs and senior water rights. These statutes could be expanded to provide for out-of-kind mitigation of smaller withdrawals and flexibility in the time and place of in-kind mitigation with respect to resolving impairment of MIFs and effects on closed streams.

3. Effect of Values-Based Standards on Treaty Rights.

How would a new impairment standard and set of mitigation tools help to protect the treaty fishing rights of Native American tribes? In consultations with treaty tribes concerning pending water right applications, I have learned that the creation or enhancement of fish habitat is often preferred by tribes to the exhaustive and expensive process of modelling and compensating for diffuse impacts to instream flow from groundwater withdrawals. Why dribble water into a river with over 1000 times the flow when you can create riparian shade and rearing habitat instead? There is also the precedent of the 1998 amendments to the Columbia River MIFs, which require consultation with tribal and governmental fisheries managers to create a mitigation package that would be acceptable as an alternative to MIF conditions on a water right permit. The consultation for the irrigation water right in OWL v. KGH resulted in a $6 million mitigation payment package that Ecology would use to fund habitat projects, and received the blessing of the Columbia River tribes. A functions and values approach to mitigation of impacts to instream flows would presumably integrate consultation with tribal, state and federal fisheries managers, as well as best available science, to insure that fisheries resources and tribal treaty rights were not impacted.

4. Consideration of Full Hydrological Cycle.

Another alternative solution to consider in the context of protecting instream flows, which could increase the potential for new development without changing impairment standards, is a requirement to consider the full hydrological cycle for new uses of water. The current impairment standards are overly precautious in that they focus only on one aspect of the effect of new development – the withdrawal of water.  New uses of groundwater not only withdraw water from an aquifer, they are also incidental to land use changes including land clearing, septic systems and storm water retention/infiltration that returns water to the aquifers, often at a higher elevation and greater quantity relative to streams than their withdrawals. The current standards ignore these benefits and offsets. Statutory directives to consider the full range of hydrologic cycle effects should be developed and recommended, perhaps as amendments to RCW 90.44.055 and the domestic ground water exemption at RCW 90.44.050. Serious consideration should also be given to exempting de minimus withdrawals, such as rural in-house domestic uses, from the regulatory effect of minimum instream flows and stream closures, consistent with constitutionally protected property rights and common sense use of our limited regulatory resources.[27]

5. OCPI

The use of the “overriding considerations of the public interest” exception has been criticized and litigated because it has assumed the importance of a safety valve for Ecology from the otherwise unworkable numeric instream flow impairment standard. Legislative direction on the scope and use of OCPI would be helpful, and legislative preservation of OCPI findings in existing instream flow rules after Swinomish would preserve the tough bargains already made in several watersheds to increase instream flows in exchange for reservations of water for certain out-of-stream uses. OCPI is not a complete solution to the current conflicts, however, and should not be relied upon as the most practical alternative.

Conclusion

It is an enormous challenge to change a water resource protection system four decades in the making, including several Supreme Court decisions interpreting key statutes and phrases. I’ve tried to explain why the status quo violates state water resource policy, the consequences of maintain the status quo, and how it could be changed for the better. I expect opposition but hope for constructive criticism and an open debate about the paths ahead. To summarize the reasons to move this discussion forward, there is precedent for the use of a values-based approach to protecting instream flows from the effects of new water rights and exempt water uses, whereas the current MIF regulatory system:

1. Fails to account for basic human water needs and economic development consistent with fundamentals of state water allocation policy and GMA planning;
2. Overspends scarce state and local financial and personnel resources on marginal impacts from permit-exempt wells for domestic uses, when it could focus on protecting and enhancing instream values;
3. Fails to address the externalities of closing a common resource, one most people would agree to be a fundamental human right, or to account for basic constitutional limits of regulation on property owners, which are the underpinnings of the permit exemption; and
4. Fails to utilize appropriate science for managing the resource or to use available data and focused studies to make real-time, science-based decisions regarding impairment and mitigation.

______________________________

Water rights stakeholders, state and local officials, attorneys, consultants and the public are invited to comment on this article, other developments concerning the Swinomish decision and rural water supply issues, and potential legislative fixes at: https://tomswaterblog.wordpress.com/.  Use the reply window following this article on the blog or click on “comment” to post your comments. You can also send me an email to tompors@comcast.net.

[1] Caveat: the views expressed in this article are mine alone and not representative of or in pursuit of any particular clients’ goals

[2] See “Finding Rural Domestic Water Solutions While Protecting Instream Resources,” Ecology publication no. 15-11-007 (revised June 2015):  https://fortress.wa.gov/ecy/publications/SummaryPages/1511007.html

[3] Protection of instream flows also appears to serve the purpose of protecting tribal instream flow treaty rights, which tends to forestall the need to adjudicate such rights in state or federal court.

[4] Ecology, “Introduction to Instream Flows and Instream Flow Rules,” http://www.ecy.wa.gov/programs/wr/instream-flows/isf101.html

[5] Ecology’s August 27, 2014 presentation to the Rural Water Supply Strategies Workgroup on instream flow science admitted to capping fish-friendly instream flow levels at the 10% exceedance level during low flow seasons, typically August through September. A 10% exceedance flow means that it is predicted to be available in the river only 10% of the time. Conversely, such flows are predicted to be unmet 90% of the time. http://www.ecy.wa.gov/programs/wr/wrac/images/pdf/pacheco-08272014-instreamflow.pdf

[6] Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 11 P.3d 726 (2000).

[7] “The statutes do not authorize a de minimis impairment of an existing right.” 142 Wn.2d at 81.

[8] For a more in depth discussion of the instream flow rule/ground water closure problem, see my article, “How Messed Up is Washington’s Water Allocation System After Swinomish Indian Tribal Community v. Ecology?” http://www.porslaw.com/wp-content/uploads/2015/01/Pors-Swinomish-Article.pdf

[9] A challenge to the validity of the Dungeness River MIF rule (chapter 173-518 WAC) is pending in Thurston County Superior Court. Bassett and Olympic Resource Protection Council v. Ecology seeks invalidation of the Dungeness Rule under the Administrative Procedure Act for, among other claims, exceeding Ecology’s statutory authority.

[10] Swinomish v. Ecology, 178 Wn.2d 571, 311 P.3d 6 (2013).

[11] Foster v. Ecology and City of Yelm, PCHB No. 11-155 (Findings of Fact, Conclusions of Law, and Order, March 18, 2013).

[12] Supreme Court Case No. 90386-7.

[13] See, e.g., Fox v. Skagit County, appeal pending, Court of Appeals No. 733150-I.

[14] Ecology could still get there for water right applicants using OCPI, but under the status quo such decisions have been appealed and are likely to continue being appealed.

[15] A more skeptical view is that the status quo has been used a means of controlling growth and land use changes in areas where opponents do not desire it, primarily in rural areas.

[16] See Okanogan Wilderness League v. Ecology and Kennewick General Hospital (OWL v. KGH), PCHB No 13-146, July 31, 2104 Order on Motions for Summary Judgment at footnote 9, p. 23.

[17] In Swinomish, the Supreme Court held that the adoption of reservations required application of the 4-part test of RCW 90.03.290 because reservations have the standing of appropriations under RCW 90.03.345. 178 Wn.2d at 588-89. RCW 90.03.345 applies equally to minimum flows, which creates legal uncertainty whether existing MIFs were appropriately adopted if there were no findings under the 4-part test.

[18] RCW 90.54.040(2); Swinomish, 178 Wn.2d at 591 fn. 13.

[19] Ecology v. Grimes, 121 Wn.2d 459, 477-78, 852 P.2d 1055 (1993); Ecology v. Acquavella, 100 Wn.2d 651,656, 674 P.2d 160 (1983).

[20] RCW 90.54.040(2); Swinomish, 178 Wn.2d at 591 n. 13.

[21] Washington State Laws of 1997, ch. 439 (ESHB 1110).

[22] Chapters 173-531A and 173-563 WAC.

[23] Order Denying Summary Judgment, Vacatur, and Final Judgment Under CR 54(b) (Dec. 12, 2014).

[24] Squaxin Island Tribe v. Ecology, PCHB No. 05-137 (2006).

[25] It is helpful in this context to remember that MIFs are proxies for the instream values, including aesthetics, recreation, water quality, and fish habitat, that are protected by adoption of a MIF. An effect on the proxy, especially a small one, does not necessarily equate to an effect on the values protected by the proxy. An effect in one place may be offset by a benefit in another, such that one or more values being protected by the proxy may in fact be unaffected or even improved. On the other hand, if impairment (and hence mitigation) are based solely on protecting a proxy flow by use of the prior appropriation system, then opportunities to do a better job protecting the values inherent in the proxy are lost.

[26] PCHB No 13-146, July 31, 2104 Order on Motions for Summary Judgment, p. 24.

[27] Exceptions may be needed in the Yakima Basin in order to protect adjudicated senior water rights.