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• 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.

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.

The Bassett case raises several fundamental legal issues for the first time, including:

1. Whether Ecology must balance the public interest (“maximum net benefits”) between instream and out-of-stream water needs before adopting minimum flows that exceed natural flow levels in the basin, and closing groundwater basin-wide to further consumptive uses;
2. Whether Ecology is required to make 4-part test findings under RCW 90.03.290 as it does for other water rights when creating minimum flow water rights by rule; and
3. Whether exempt-well water uses have “relation-back” priority dates like other water rights, which must be considered when adopting regulations that would deny legal water availability to rural properties.

These are  statewide issues of considerable importance to individuals and communities who are being denied building permits based on lack of water availability as a consequence of instream flow regulations that failed to account for future water needs.  See my article on the Whatcom County v. Hirst decision for more background on these issues.

Individuals and organizations who support the plaintiffs’ cause to make water available for rural areas and to reform instream flow protection law in Washington State should contact Tom Pors at (206) 357-8570 or the president of Olympic Resource Protection Council, Greg McCarry, at 360-509-0633.