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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.

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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.

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