Washington Water Watch 
December 2016

In This Issue
2017 Legislative Session Preview
Hirst Decision: The Sky is Not Falling
December CLE Summary
Ecology Fines Farm Owner for Illegal Water Use
Keep Our Rivers Flowing!
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CELP Will Protect Washington's Water in the New Year
2016 has come to an end, and what a year it has been! Because of the generous support of our donors like you, CELP has had a successful year keeping Washington's rivers and streams flowing with greater protections. Our 2016 victories include:
  • Protecting Washington's rivers from over proliferation of permit-exempt wells by supporting Hirst and Futurewise in the recent Supreme Court victory reaffirming that counties must make sure water is both legally and physically available before issuing building permits for buildings relying on permit exempt wells for their water use.
  • Successfully defending the instream flow rule for the Dungeness River from a challenge by developers in Superior Court.
  • Defeating bad water resource bills in Olympia, and promoting more sustainable water management.
  • Educating the public about the water resource impacts of Climate Change, and Washington Water Law by sponsoring two educational conferences.
But new threats are everywhere, and Washington's waters are in imminent danger. The Trump administration has vowed to dismantle the EPA, eliminating many of the protections for our state's waterways, and repealing the Endangered Species Act, eliminating protections for our wild salmon. And here at home legislation has been proposed to overturn recent Supreme Court decisions that protect our rivers and streams, and the fish that rely on healthy stream flows.

Now more than ever, CELP needs to be there to defend our freshwater resources and ensure wise and sustainable water management for future generations, but we can't do it alone. Huge thanks to those of you who have already given to CELP this holiday season. If you haven't renewed your membership for 2017 do so today and help us kick off 2017 with a bang. All donations to CELP are tax deductible.

Wishing you health and happiness in the New Year,

Trish Rolfe
Executive Director

2017 Legislative Session: What's in Store
by Trish Rolfe

Legislative Preview

Water will surely be a hot issue in the legislature again this year, and we expect bills to be introduced that would undermine or overturn several recent Washington Supreme Court decisions including the Hirst decision on permit exempt wells handed down in October. CELP is currently reviewing several prefilled bills, and we will be working on Olympia to insure protection of Washington's water resources.  

Pre-filed bills to watch:
AN ACT Relating to clarifying the authority of the department of ecology regarding minimum flows;  this bill allows for out of kind mitigation, and allowing the use of using OCPI to impair flows.  
 AN ACT Relating to identifying certain water rights held by municipal water suppliers as water rights available for municipal2water supply purposes;  this bill was filed last year and it converts agricultural water rights to muni water rights to avoid relinquishment.

The 2017 legislative session begins on Monday, January 9th. CELP will continue to monitor these bills and any other water-related bills that are proposed. 

Nooksack River in Whatcom County
Washington State Supreme Court "Hirst" Decision: the Sky is Not Falling
by Dan Von Seggern
The Washington Supreme Court's October 2016 decision in Whatcom County v. Western Washington Growth Management Hearings Board, 186 Wn.2d 648, 381 P.3d 1 (2016) (" Hirst") has resulted in a great deal of discussion and concern. The decision has been painted as creating a "moratorium" on construction in rural areas, and the outcry has included calls for a legislative "fix" in order to allow unabated construction in rural areas. Much of this angst is misdirected. Any lack of water availability existed before the decision, rather than being created by it. Hirst simply affirms existing Washington water law and requires that it actually be enforced. In order to put the controversy in perspective, it is important to look at what Hirst actually says.

Water law in Washington (and indeed the entire West) is based on the bedrock principle that "first in time is first in right." This is based on the undeniable fact that there is not, will not, and logically cannot be enough water to allow all possible uses without restriction. Under this principle it is new ("junior") users who are to bear the burden of any water shortage, not older ("senior") users. This is true for agricultural users, for cities, for instream flows established to protect fish and wildlife, and for residential use relying on domestic wells. A person who wishes to start a new use of water generally must apply for a permit; review of the application includes a determination of whether the new use would interfere with existing users. However, a provision in Washington law that exempts small domestic well use from the requirement to obtain a permit has resulted in such rural residential use largely being ignored by the regulatory system.  
That may have been all well and good when the demand for water was far less than the supply. But it is not tenable now that essentially all of Washington's water has been spoken for. Permit-exempt wells can and do affect senior users; it is known that they affect streamflows, and there are now reports (including from Whatcom County) that new permit-exempt wells have reduced production from more senior users' wells. 

Hirst dealt with the intersection of water law and another form of development regulation: the Growth Management Act (GMA). The GMA was enacted in order to control sprawling development, and requires that certain counties develop master plans to ensure development is channeled into areas with appropriate resources. One provision of the GMA requires that a county's plan include "rural elements," which require protection of, among other resources, groundwater resources. Hirst involves a challenge to Whatcom County's GMA planning. The Nooksack River is the largest in Whatcom County and is critically over-appropriated. Ecology established an instream flow rule for the Nooksack in 1985, but the rule neither bars use of groundwater from permit-exempt wells nor specifically allows such uses. In lieu of actually determining whether groundwater was available for development in various parts of the county (in order to protect the resource), Whatcom County simply "incorporated" Ecology's Rule.  Because Ecology's rule did not specifically address the use of permit-exempt wells, Whatcom County inferred that their unrestricted use was permissible in most of the county. The net result was that no one ever looked at how permit-exempt wells would affect groundwater and streamflows, and that anyone who wished to sink a well was granted a building permit. The Hirst plaintiffs asked the court to invalidate the County's plan and to hold that the Plan's (non)provisions for protection of rural water supplies were deficient. The Court agreed, and ruled that the County was indeed responsible for determining that water was actually and legally available before issuing a building permit. 

Hirst is really nothing more than a statement that existing water law will be followed.  In other words, someone must actually make sure that a new withdrawal of water would not impair senior users. This should not be controversial. Objections to the decision come from two major directions.  First, counties do not want to be responsible for making case-by-case determinations of water availability, and they (perhaps rightly) argue that landowners alone should not bear the cost of a hydrogeologist's study.  Justice Madsen's concurring opinion recognized this issue, and suggested that the state and the counties should work together to determine water availability.  Hirst, 186 Wn.2d at 696-700. As the steward of the state's water resources, Ecology is clearly in the better position to provide this information. Second, there will be places where unmitigated water use cannot or should not be allowed, and landowners object to the end of "free" water. But this is not because the Court decided to stop rural development. The simple fact is that water is limited and in many areas it has all been spoken for. This was true before Hirst, and it will remain true even if the Legislature were to attempt a "fix." A county's growth management plan needs to account for this reality, even it ultimately means that some areas are not suitable for residential development.

So how are counties and would-be homebuilders to proceed? One option is to mitigate new water use, to avoid any impairment of streamflows or other senior users. Water banking, in which senior, usually agricultural, water rights are purchased and placed in trust as instream flows, is being used to provide mitigation. The instream flow protection rule for the Dungeness River Basin (Chapter 173-518 WAC) incorporates water banking as a preferred strategy to mitigate new water use, and new homes are being constructed in the Basin. Water banking has also been successfully applied in the Kittitas Valley, where water shortages are a long-standing reality.

It may be tempting to look for a quick legislative solution to this "problem." However, the cure would likely be far worse than the disease. One idea being proposed in the Legislature is a new provision of law that would flatly (and illogically) state that permit-exempt wells do not impair streamflows (in other words, we just don't have to worry about it). This "head-in-the-sand" approach would undermine both the prior appropriations system generally and protection of instream flows in particular, and conflicts with the well-established principle that instream flows are water rights like any others. Undermining instream flow protection would be catastrophic for fish and wildlife, as well as interfering with the state's obligations to its treaty tribes. Rather than search for the quick fix, the better course is to acknowledge limits on our water supply, and to ensure that new water uses do not come at the expense of senior users. By doing so we can sensibly manage Washington's growth without sacrificing its environment and quality of life.

Amanda Cronin presents on Water Banking in the Dungeness at CELP's 6th Annual Winter CLE
Thank you for Attending CELP's December CLE!

by Elan Ebeling

Approximately 50 people attended CELP's CLE held on December 1st at the 2100 Building in South Seattle. This year's theme was "Protecting Instream Values in the Face of Climate Change". 

The morning portion of the program included two panels. The first panel addressed Rural Water Supply and the new legal landscape, and featured Futurewise's Tim Trohimovich, Professor Jean Melious from Western Washington University and Nossaman LLP, and CELP's Dan Von Seggern. Mr. Trohimovich spoke on the Hirst decision and land use planning, Ms. Melious discussed how Hirst intersects with vested rights, and Mr. Von Seggern discussed the Dungeness River instream flow rule and its compliance with Hirst.

A second panel on Climate Change and Water Supply explored the impacts of and responses to climate change in Washington State. Lara Whitley Binder from the University of Washington Climate Impacts Group spoke on the expected environmental impacts of climate change according to current climate modeling, and Professor Jonathan Yoder from Washington State University discussed the projected economic impact of climate change. Ecology's Tom Loranger spoke on Ecology's response to a changing climate, and Andrea Rodgers from the Western Environmental Law Firm discussed current cases using the Public Trust Doctrine to bring climate change litigation.

During the afternoon session, Professor Thomas Schlosser from the University of Washington School of Law gave a talk on Tribal Water Rights and Habitat, which was followed by two speakers on water banking. Kittitas County Deputy Prosecuting Attorney Neil Caulkins spoke on water banking in Kittitas County, and Amanda Cronin discussed Washington Water Trust's water banking program in the Dungeness basin.

The program was rounded out by a presentation from CELP Board Member Brady Johnson on the Legal Ethics of Entity Representation.

If you were unable to attend the CLE but would like to purchase the presentation materials, they are available for $30. Please contact development@celp.org.

South Sound Waters a Success!

Thank you to all who attended CELP's South Sound Waters fundraiser in Olympia last Wednesday, December 7th. We raised over $1,300 for CELP's work to protect instream flows and water resources in Washington State, and enjoyed seeing our loyal Olympia members as well as many new faces! Special thanks to Senator Karen Fraser for her talk on water resources in Washington State, and for CELP Board Member Steve Robinson for sharing about his recent trip to Standing Rock. 

Department of Ecology Fines Whatcom County Berry Grower for Illegal Water Usage

The Washington State Department of Ecology has issued two fines totaling $102,000 to a Whatcom County resident for water use violations on two separate berry farms located in the Nooksack River basin. Gurjant "George" Sandhu has been illegally irrigating his raspberry farm and failing to provide accurate records of water use at his blueberry farm for years. Illegal water usage was documented on Sandhu's rasberry farm as recently as the summer of 2016.

 Illegal water use can be detrimental to stream flows and other water users. The Nooksack River is one of 16 basins in Washington considered critical for providing habitat for threatened migratory fish. CELP commends the Department of Ecology for holding those in violation of our state's water laws accountable.

CELP in the News

Thanks for taking the time to read Washington Water Watch!  Thanks to your help, CELP has accomplished much but, as you can see, more needs to be done. You can support our work by making a donation online here, or mailing a check to: 

85 S Washington St #301, Seattle, WA 98104 

The Center for Environmental Law & Policy is a statewide organization whose mission is to protect, preserve and restore Washington's waters through education, policy reform, agency advocacy, and public interest litigation.

If you care about a future with water, please become a CELP member today!
You can reach us at:  206-829-8299 or  email us .