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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.

To download the complete article, click here.

• It requires updates to several watershed plans and new watershed restoration and enhancement (WRE) plans in multiple watersheds;
• It allows counties and cities to comply with GMA relating to surface and groundwater protection by relying upon applicable minimum instream flow rules, effectively overruling the Hirst decision in most watersheds;
• It grandfathers wells that were drilled prior to the January 19, 2018 effective date in all but a few watersheds but with lower daily volumes;
• Pending development of required WRE plans and rules, it establishes a $500 fee for building permits based on exempt wells with a maximum 950 gallons per day per connection;
• It establishes a watershed restoration and enhancement account, with new bond authority and the intention to appropriate $300 million over 15 years for streamflow enhancement projects; and
• It establishes a Joint Legislative Task Force to develop and recommend a mitigation sequencing process that may resolve mitigation availability issues from the Foster v. Yelm case, and directs Ecology to process water right applications for five pilot projects using a new mitigation sequencing standard.

I am preparing a more detailed article on ESSB 6091, which will be published here in the coming weeks.

[1] ESSB 6091, Ch. 1, Laws of 2018.

The ELUL mid-year meeting will be held at Suncadia on May 10 to 12, 2018.  Tom’s panel will be presenting on Friday, May 11th at 1:15 p.m.

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.

_______________________________________

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.

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 attached 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.

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

The case began with challenges by Eric Hirst and Futurewise to Whatcom County’s comprehensive plan and development regulations on grounds that, among other things, they failed to include adequate provisions to protect ground and surface waters with respect to individual permit-exempt wells. GMA requires counties that plan under GMA to include a rural element consistent with GMA’s goals, including measures to protect critical areas and surface and groundwater resources.[2] In Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd.,[3] the Supreme Court held that Kittitas County’s development regulations violated GMA because they didn’t prevent daisy-chaining of multiple permit-exempt wells for projects under common ownership or a common scheme of development, which allowed developers to violate limitations on the use of permit-exempt wells.[4]  The Supreme Court held that growth management hearings boards have jurisdiction over petitions challenging whether development regulations violate GMA provisions such as the requirement to protect groundwater resources and RCW 19.27.097 and 58.17.110, which require counties to assure adequate potable water is available when issuing building permits and approving subdivisions. While holding that counties are responsible for land use decisions that affect groundwater resources, the Court also recognized the statutory role of Ecology, adding “[Ecology] ought to assist counties in their land use planning to adequately protect water resources.” This assistance is discussed further below.

The primary issue in the Hirst case relates to the significance of Ecology’s instream flow rule for the Nooksack Basin, Chapter 173-501 WAC, and whether it prohibits new exempt well uses that may impair closed streams and minimum flows. The Board interpreted the Nooksack Rule as precluding new permit-exempt uses as a matter of law, and ruled that the County’s measures to protect water availability did not comply with GMA because they allowed the use of permit-exempt wells except “where [Ecology] has determined by rule that water for development does not exist.” The Court of Appeals reversed, holding that the Board erroneously interpreted the law as requiring the County to make its own separate determination of legal water availability. It ruled that the County complied with its statutory responsibility and the Kittitas decision by invoking the assistance of Ecology regarding the availability question. Ecology had advised the County about exempt wells and submitted an amicus curiae brief to the Court of Appeals interpreting the Nooksack Rule as not applying to permit-exempt water uses, thus rendering them legally available for the issuance of building permits in rural areas in the Nooksack basin. The Court also held that the Board erroneously relied upon a December 2011 letter from Ecology to Snohomish County relating to restrictions against permit-exempt wells under a different basin rule with different language, finding that the letter had nothing to do with the Nooksack Rule.

The Hirst and Futurewise appellants argued that the Board’s determination of non-compliance with GMA was consistent with Supreme Court precedent interpreting water availability vis-à-vis instream flow rules. In Postema v. PCHB,[5] the Court held that ground water is not available if its withdrawal would have “any effect” on a stream closed to further appropriation, or if it would impair a minimum flow established by regulation. The Court of Appeals rejected these arguments because Postema addressed issues arising from “applications” for water rights, not permit-exempt withdrawals, and because the appellants’ argument conflicts with Postema by assuming a uniform interpretation of instream flow rules.

Ecology’s interpretation of the Nooksack Rule was key to the result in the Hirst case. The question remains, however, how Ecology will interpret other instream flow rules and whether those interpretations will lead to GMA appeals or rural building moratoriums in other counties. In many of Ecology’s instream flow rules, in-house domestic uses are exempted. In others, Ecology is required to consider the “natural interrelationship between ground and surface waters” with no specific exemption for permit-exempt water uses. In at least eight watersheds, Ecology invoked “overriding considerations of public interest” (OCPI) to reserve water for out-of-stream uses that conflict with instream flows, reservations that are now legally suspect after Swinomish Indian Tribal Community v. Dep’t of Ecology.[6] In the Skagit, Dungeness and Upper Yakima basins, rural property owners are already restricted from obtaining building permits without mitigation, and mitigation through local water banks is not available everywhere it is needed.

Ecology’s Water Resources Program is updating its advice to counties regarding water availability determinations like those made in the Hirst case.  The status of Ecology’s project, which involves a large stakeholder group, can be followed on Ecology’s website[7] or through participation in the Water Resources Advisory Committee. Ecology’s goal is to develop an updated set of water availability guidelines for each watershed by the end of 2015. That guidance could lead to GMA appeals in some counties with the goal of preventing new building permits based on permit-exempt wells. It could also lead to litigation on the key issue in the Hirst case – whether instream flow rules should be interpreted as requiring denial of building permits and subdivision approvals with permit-exempt water supplies.  The impact of that on counties, rural land usage, and property rights would be significant, raising constitutional issues and increasing pressure on the legislature for a solution. The author of this article would not be surprised if the Hirst case is appealed to the Supreme Court, or if other challenges like it pop up in other counties.

[1] Whatcom County v. Western Wash. Growth Mgt. Hearings Bd., Ct. App. Div. 1, Case No. 70796-5-1 (Feb. 23, 2015).

[2] RCW 36.70A.070(5)(c)(iv).

[3] Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 144, 256 P.3d 1193 (2011). 

[4] See Dept. of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 43 P.23d 4 (2002) (common project involving division of land can only qualify for one group domestic permit-exempt well for groundwater use up to 5,000 gallons per day).

[5] Postema v. PCHB, 142 Wn.2d 68, 11 P.3d 726 (2000).

[6] Swinomish Indian Tribal Community v. Dep’t of Ecology, 178 Wash.2d 571, 311 P.3d 6 (2013).

[7] http://www.ecy.wa.gov/programs/wr/wrac/rwss-wag.html