In this issue, an article on the flawed “Hirst fix” recently passed by the WA State Legislature, an update on the Leavenworth Hatchery case, an in-depth article on the real impact of permit-exempt wells and the Hirst fix, the save the date for Winter Waters Event in March, and more.
Read the January 2018 issue of Washington Watch Watch here.
Check out the latest edition of our monthly newsletter, Washington Water Watch. In this month’s issue you’ll find an article on the current water bills in the Washington State legislature, an update on CELP’s recent motion for summary judgment in the Leavenworth National fish hatchery case, an article on the Lyre-Hoko watershed, and a notice about our upcoming Spokane event, Winter Waters.
by CELP Executive Director Trish Rolfe and Government Affairs Specialist Bruce Wishart
Water is a major topic in the legislature again this year, and several bills have been introduced that would undermine or overturn several key Washington Supreme Court water law decisions, including the Hirst decision on permit exempt wells handed down in October. CELP has been busy testifying on these bills in Olympia to ensure protection of Washington’s water resources.
Senate Bills that CELP Opposes: These bills would negatively impact instream flows and salmon.
- SB 5010: Avoiding Ecology Review of Expansion of Agricultural Water Rights as a Result of Claimed Conservation
While we support and encourage water conservation, this bill would bypass a process in existing law to ensure that when a farmer conducts conservation then sells or transfers the water, the water is legally available for the new use. Farmers who wish to do conservation can use the established “Trust Water Rights Program” in current law to avoid relinquishment of the water saved by conservation practices
- SB 5005: Converting an Agricultural Right to a Municipal Right without Ecology Review
Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would avoid that review, allowing relinquished rights to be revived. House companion bill is HB 2084.
- SB 5003: Allowing New Projects to Mine Instream Flows
This bill overturns several recent State Supreme Court decisions on water law, allowing approval of new projects that reduces instream flows necessary to protect endangered salmon. Ecology could use different tools to impair instream flows to support new land use development and other new out of stream projects. This would result in giving a super priority to permit-exempt wells, harming senior water rights holders and instream flows.
- SSB 5002: Requiring Leased Water Rights used as Mitigation to be Replaced by Permanent Water
This bill allows temporary, leased water to be used to mitigate ongoing use of domestic wells.
- SB 5239: Overturning Hirst and Allowing Wells to Harm Instream Flows
Overturns Hirst and allows unmitigated development to harm existing users of water, including instream flows. Completely undermines instream flows, making them subordinate to new wells.
Senate Bill CELP supports with concerns
- SB 5024: Allows Development to Proceed under Hirst under Mitigation Plans
Allows for new development to occur in rural areas without adequate water supply provided the County adopts a mitigation plan. A county is given five years to allow new development before mitigation must be in place. Follows models used successfully in Clallam and Kittitas Counties which allow salmon-friendly development.
House Bills that CELP Opposes. These bills would negatively impact instream flows and salmon.
- 1084 Converting an Agricultural Right to a Municipal Right without Ecology Review
Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would bypass that review, allowing relinquished rights to be revived. Senate Companion bill 5005
- 1348 Concerning the priority in the state water code assigned to various beneficial uses.
Establishes that regardless of priority date, instream flows rules are always junior to the beneficial use of water for irrigation, commercial, industrial, or potable water purposes. Changes water law, and makes Instream flow water rights a lesser water right. Would destroy meaningful protections for instream flows and harm fish and other wildlife.
- 1349 Declaring any minimal cumulative impacts of permit-exempt groundwater wells on water levels to be overwhelmingly offset by state investments in fish habitat improvement projects.
Establishes that permit-exempt groundwater withdrawals are deemed to not impair senior water rights, presumably including instream flow rules, and that the cumulative impact from permit-exempt wells on instream flows are to be “forever fully mitigated.”
Allows for out of kind mitigation for impairment of Instream flows. Makes Instream flow water rights a lesser water right. Will harm fish and wildlife because other habitat improvements are meaningless if there isn’t enough water in the streams for fish. A water right is a right in perpetuity, but habitat improvements are not permanent.
- 1382 Establishing a rebuttable presumption that permit-exempt groundwater withdrawals do not impair instream flows or base flows. Establishes that permit-exempt groundwater withdrawals are presumed to not affect or impair instream flows unless “conclusive evidence” is provided proving otherwise.
This would result in giving a super priority to permit-exempt wells, harming both senior water right holders and instream flows.
- 1394 Regarding the processing of applications for Columbia river water right permits to clarify legislative intent to ensure that the rules can be implemented as written.
This bill would allow out of kind mitigation for impairment of Instream flows on the Columbia River System. It would harm instream flows and the fish and wildlife that depend on adequate water in the river. This is a companion to SB 5269.
- 1459 Considering the full hydrologic cycle in the review and approval process of new water uses. Changes the groundwater code and GMA such that Ecology and counties have to look at the “full hydrologic cycle” when assessing the impact of new groundwater withdrawals. This would result in impairment of streamflow, because removal of trees does not guaranty that groundwater is recharged or that streamflow is improved.
- 1460 Redesigning the transfer of water rights, including the statutory process of relinquishment. Changes the relinquishment statutes, requiring that Ecology provide conclusive evidence to prove water relinquishment. Establishes that water rights relinquished go into a special trust that be made available for irrigation, municipal, and other beneficial uses. This undermines water law by removing the “use it or lose it” provision designed to make sure water is put to a beneficial use. Shifting the burden to Ecology to prove that the water hasn’t been beneficially used, which is almost impossible to do.
- 1748 Modifying provisions within the growth management act to improve affordable housing opportunities in rural communities; Rolls back the Hirst Would allow permit-exempt wells to impair senior water rights.
House bill that CELP supports:
- 1172 Encouraging low-water landscaping practices as a drought alleviation tool.
House bill that CELP supports with concerns:
- 1760 Relating to off-site mitigation for projects
By Bruce Wishart, CELP’s Government Affairs Specialist
The 2014 session is now well behind us and it’s time to review what progress was made on water issues in Olympia this year. Some political observers have described the 2014 legislative session as one of the least productive sessions on record. Strong differences between the House and Senate, combined with the fact that this was a “short” or 60 day session (and an election year), made it difficult for agreement to be reached on most topics. Nevertheless, legislators engaged in a vigorous debate on lots of issues, including water resources and water quality issues. CELP, working together with tribes and other environmental groups, helped lead efforts this session to defeat a number of bills that would have seriously impacted our waters.
While there were fewer water resources related bills introduced than we have seen in subsequent years, the heated debate over rural development and exempt wells continued. Local governments, agricultural interests, and developers all supported legislation offered in the House (HB 2288) which would have stripped away authority from the Growth Hearings Board to oversee decisions by local government to permit rural development in areas where water supplies were scarce. This bill followed in the wake of the Board’s decision in Hirst v. Whatcom County, which affirmed and built upon prior court decisions holding that local governments have an obligation to ensure that water is legally available for new development before approving comprehensive plans or permitting new projects. Despite the Growth Management Act’s multiple directives that counties determine water availability before approving land use development, the proponents of HB 2288 argued that the Hearings Board had overstepped its bounds. CELP and tribal representatives opposed the bill and, thankfully, it did not advance.
In the Senate, Senator Honeyford (R-Yakima) introduced SB 6467, which would have overturned a recent Washington Supreme Court decision, Swinomish Indian Tribal Community v. Ecology, which held that Ecology improperly authorized exempt well use despite clear evidence that the wells would deplete minimum instream flows for the Skagit River, adopted by rule. SB 6467, again, opposed by both CELP and the tribes, was also defeated.
Several other bills were offered on the topic of local “water banking” in both the House and the Senate (HB 2760, HB 2596, and 6239). Water banks allow for new water users to purchase “credits” to offset the impact of their water usage in areas where new development would impact instream flows and other existing water rights. While CELP supports that approach generally, we were concerned that these bills might encourage local governments to move forward with water banks without having the technical expertise to properly assess the validity of the rights being banked and to conduct the trading properly. In the end, these bills also fell by the wayside.
On the water quality side, five bills were introduced by the Cattlemen and the Farm Bureau in an attempt to strip away Department of Ecology’s authority to regulate “nonpoint” agricultural water quality problems. “Nonpoint” pollution refers to diffuse sources of pollution—such as cattle manure in streams they use for watering. Once again, these bills were introduced in response to a recent Washington State Supreme Court decision, Lemire v. Ecology, which affirmed that Ecology had clear authority under state law to prevent farms from discharging pollution into the waters of the state. A variety of bills were introduced on this topic (SB 6087, 6288 and HB 2472, 2478) which would have either eliminated the agency’s authority outright or, in the alternative, placed many restrictions on their ability to exercise it. CELP working again with other environmental groups and tribes stopped these bills dead in their tracks. The discussion over this authority will continue this summer in a Water Quality and Agriculture working group created by Ecology Director Maia Bellon to discuss how water quality requirements will be enforced, among other topics. (CELP accepted Ecology’s invitation to l participate in the working group; there are only a handful of few environmental representatives on it). A fifth bill, HB 2454, allows an initial investigation of water quality trading. After considerable effort, CELP ensured that this bill was amended to our satisfaction. The bill is on the Governor’s desk awaiting his signature.
The Legislature’s last order of business was approval of “supplemental” budgets. Since the state operates on a two year, “biennial budget,” the supplemental budgets adopted this year were, for the most part, “course corrections” amending the 2013-14 biennial budget adopted last year. For this reason, the debate lacked much of the drama we saw last year on the main budget. One area in which there was a great deal of controversy was the state Supplemental Capital Budget, which funds construction projects. This year, for the first time since 1996, the House and Senate could not come to agreement on a Capital Budget. Among other things, the collapse of negotiations on this budget sank efforts to create a legislative study group designed to develop recommendations on anticipated referendum to be introduced in 2015 to finance large scale water projects throughout the state. The legislative study group would have been charged with developing a multi-billion dollar revenue source to fund controversial water storage projects, such as those proposed for the Yakima Enhancement Project, as well as water projects that enjoy broad support, including those designed to address harm from stormwater runoff.