I was proud to co-chair the leading annual water law seminar in Washington State the last two years. This year, I will be moderating a panel of distinguished speakers at LSI’s Water Law in Washington seminar on July 25, 2017 in Seattle. The panel topic is, “Local Water Resource Planning after the Hirst Decision.” There is a lot to talk about, because the Legislature’s ability to pass a capital budget in its 3rd extra session currently hinges on adoption of a fix to the Hirst case and its impacts on local development. Distinguished panel members include Joe Mentor with the developer perspective, Jean O. Melious with the environmental perspective, Assistant AG Alan Reichman with the state government perspective, and Kittitas County Commissioner Paul Jewel with the local government perspective. Registrations are being taken online at: http://www.lawseminars.com/seminars/2017/17WATWA.php. The seminar brochure can be viewed and printed from this link: http://www.lawseminars.com/webpdfs/2017/17WATWA.pdf
On January 3, 2017, I filed a notice of appeal in the Bassett v. Ecology case on behalf of plaintiffs Magdalena and Denman Bassett, Judy Stirton, and Olympic Resource Protection Council. This sends their challenge of the Dungeness River Instream Flow Rule to the Washington Supreme Court. The next step is filing a Statement of Grounds for Direct Review by the Supreme Court, bypassing the Court of Appeals. The Supreme Court typically accepts direct review in water rights and instream flow cases of statewide significance.
The Bassett case raises several fundamental legal issues for the first time, including:
- 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;
- 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
- 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.
The Washington Supreme Court’s decision in Whatcom County v. Hirst, will significantly impact rural water availability by requiring Washington counties to ignore exceptions for permit-exempt wells in many of the state’s instream flow protection rules, causing considerable and unwarranted hardship to rural property owners. The decision expands the Court’s already extreme protection of regulatory instream flows by requiring counties to make independent “legal water availability” determinations under the Growth Management Act (GMA) before issuing building permits that rely on permit-exempt wells as water supplies.
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.
 Whatcom County v. Eric Hirst, et al., Wash. Supreme Ct. Case No. 91475-3 (slip opinion dated Oct. 6, 2016).
On December 2, 2016, Judge Gary R. Tabor of the Thurston County Superior Court signed the final order denying Plaintiffs’ challenge to the validity of the Dungeness River Instream Flow Rule, Chapter 173-518 WAC. The Plaintiffs, including the Olympic Resource Protection Council, are property owners, realtors and builders living in the Dungeness basin who were significantly impacted by the Dungeness Rule, and are considering an appeal to the Washington Supreme Court. Such an appellate review would be “de novo,” meaning that the Supreme Court would make its own decision based on the rule-making record, and would not give deference to the lower court’s decision. The precedent for a successful appeal exits in several recent Supreme Court cases including Swinomish, Foster, and Hirst where the Supreme Court reversed lower court decisions that held in favor of Ecology.
Judge Tabor made his initial ruling from the bench after a trial on October 21, 2016. He did not think that plaintiffs met their burden of proving that Ecology violated its statutory authority by adopting the Dungeness Rule without a maximum net benefits test or the four-part test for creating water rights at RCW 90.03.290, and held that the rule was not arbitrary and capricious.
On July 29, 2016, Tom filed the Plaintiffs’ Opening Brief in the first judicial appeal under the Administrative Procedure Act (APA) of a Department of Ecology instream flow rule. The case, Magdalena Bassett, et. al, v. Department of Ecology, alleges that Ecology’s Dungeness River instream flow rule (Chapter 173-518 WAC) violates the APA and exceeds Ecology’s statutory authority on numerous grounds. Trial in the case is scheduled for October 21, 2016 before Judge Gary R. Tabor of the Thurston County Superior Court. You can read the trial brief by clicking on this link.
Please contact Tom Pors at email@example.com or Greg McCarry at firstname.lastname@example.org if you would like to support this effort to reform the State of Washington’s troubled water resources program and fix defective instream flow rules that have led to basin-wide water availability issues without adequate planning or public notice.
One fallout from the Swinomish v. Ecology decision in 2013 was the Department of Ecology’s instruction to Skagit County that it could no longer accept permit-exempt wells in the Skagit basin as proof of an adequate water supply for building permits. RIchard and Marnie Fox purchased and subdivided a property in Skagit County near the Town of Lyman before 2000, when the Skagit River Instream Flow Rule (WAC 173-503) was adopted. They also drilled a well intending to build their home on the property. After the Supreme Court’s Swinomish decision, they applied for a building permit, but Skagit County determined their application was “incomplete” for failure to include a mitigation plan to avoid any impacts to instream flows in the Skagit River. The Foxes filed a writ of mandamus action in Skagit County Superior Court claiming that their permit-exempt well was sufficient under RCW 90.44.050 to establish a legal water supply, and sought an order forcing the County to issue the building permit. Ecology and the Swinomish Tribe intervened and argued that permit-exempt wells were subject to the instream flow rule, and did not establish uninterruptible water rights. The superior court denied the writ and the Foxes appealed to the Washington Court of Appeals, which agreed with the superior court in a published opinion dated April 11, 2016.
Following the Court of Appeals decision, the Foxes asked Tom Pors to assist their attorney, Peter Ojala, with a petition for review to the Washington Supreme Court. Tom focused their effort on three issues to convince the Supreme Court to accept the case for review:
- Is a rulemaking determination of hydraulic continuity enough, by itself, to conclude as a matter of law that a permit-exempt groundwater use is subject to the minimum instream flows and interruptible under WAC 173-503-040, and therefore an inadequate water supply under RCW 19.27.097?
- Did the Court of Appeals err in ruling that Skagit County can impose a new requirement on building permit applicants, who otherwise qualify for the groundwater permit exemption, to either obtain a water right permit or prove legal water availability and nonimpairment of instream flows?
- Did the Court of Appeals err by determining, as a matter of law, that Fox’s permit-exempt groundwater use would be junior in priority date to an instream flow water right, without a trial on factual issues concerning whether the priority date precedes the instream flow rule pursuant to the common law relation back doctrine?
Click here to read the Foxes’ Petition for Review. Skagit County filed a response supporting the Foxes’ petition. Ecology and the Swinomish Tribe filed responses opposing the petition. The Supreme Court is expected to either accept the petition or deny it within two to four months.
Contact either Tom Pors or Citizens Alliance for Property Rights (CAPR) if you are interested in supporting this case. Fighting against state government and tribes to maintain property rights, including the limited groundwater supply that the Legislature deemed in the pubic interest by exempting it from permitting requirements (see RCW 90.44.050), is an uphill and expensive battle. The Foxes and other Skagit County residents appreciate your support. CAPR’s contact for the Fox case is Gary Clancey, 360-293-7403.
The Washington State Legislature adopted three water-related bills that were signed into law at the end of the 2016 Special Session ending on March 30th. In a short session devoted primarily to budgeting for education, it wasn’t expected that major reform legislation would tackle the water supply problems created by the Swinomish and Foster cases. Two of the bills dealt with specific consequences of the Swinomish decision and its impact on legal water availability, and the third is aimed at finding general solutions to water availability for exempt wells, used primarily in rural areas.
ESSB 6513 aims directly at the impact of Swinomish on reservations of water adopted by Ecology using OCPI authority (overriding considerations of public interest). In Swinomish v. Ecology, 178 Wn.2d 571, 602, 311 P.3d 6 (2013), the Supreme Court invalidated the amended Skagit River Instream Flow Rule (Chapter 173-503 WAC) because the Department of Ecology had adopted reservations of water for future uses (including exempt wells for domestic water supply) using OCPI authority after adopting minimum instream flows in the same basin, a practice the Court found to violate the prior appropriation doctrine and the narrow purposes of OCPI. Similar reservations were adopted by Ecology before the Swinomish ruling in an amended Wenatchee River Instream Flow Rule (WAC 173-545-090) and in the Dungeness River Instream Flow Rule (WAC 173-518-080). After the Swinomish decision, Ecology notified local governments in the Wenatchee basin that it could no longer rely on the validity of the reservations at WAC 173-545-090, and that Ecology would stop processing their applications for water rights allocating the reservations. That put a stop to years of effort to obtain additional water rights for the exempt well domestic uses in Chelan County and for the cities of Leavenworth and Cashmere. In the Dungeness River basin, Ecology adopted an instream flow rule in 2012 that effectively closed ground water to new uses but for a limited reservation of groundwater at WAC 173-518-080, which was also adopted using OCPI authority. The validity of the Dungeness Rule has been challenged in the Bassett v. Ecology case pending in Thurston County Superior Court. ESSB 6513 tries to solve the OCPI-based reservation problems in these two rules by virtue of a legislative declaration that those specific reservations are “consistent with legislative intent and are authorized to be maintained and implemented by [Ecology].” It is questionable whether such a legislative declaration is an adequate legal defense to these reservations because the Supreme Court held in the Foster v. Yelm case last year that OCPI could not be used to authorize permanent water uses that would otherwise be inconsistent with an adopted minimum instream flow water right. Sara Foster v. Dep’t of Ecology and City of Yelm, Wash. Supreme Court Case No. 90386-7, Slip Opinion dated October 8, 2015. However, ESSB 6513 provides new authority and legal cover for Ecology to process applications allocating the Wenatchee and Dungeness reservations unless or until the adequacy of ESSB 6513 is challenged.
ESB 6589 directly addresses water availability issues created by the Swinomish decision in the Skagit basin, which includes portions of Skagit and Snohomish counties. The bill requires Ecology and other listed stakeholders to study the feasibility of using “effectively sized water storage” to recharge the Skagit River basin when needed to meet minimum instream flows and provide noninterruptible water supply for users of permit exempt wells in the basin. Ecology is required to submit the report to the legislature’s standing committees on water resources and fiscal issues by December 1, 2016.
SSB 6179 is a water banking bill that amends chapter 90.42 RCW to require specific information be maintained on Ecology’s website about water banks, which is essentially an effort to create more transparency and public accountability for water banks set up to provide alternative sources of mitigation for new exempt well uses and water rights in closed basins. The schedule or table required for each water bank must be maintained on Ecology’s website and updated quarterly, and operators of water banks are required to furnish the information to Ecology upon request.
Tom will be speaking at a King County Bar Association CLE on March 31, 2016 in Seattle. The half-day seminar covers environmental issues involving drought and fire, and also features Mitch Friedman of Conservation Northwest, Dr. Crystal Raymond of Seattle City Light, Peter Dykstra of Plauche and Carr LLP, and Sharon Haensly of the Squaxin Island Tribe.
Tom’s one-hour topic is “The Impact of Instream Flow Rules and Supreme Court Decisions On Water Availability and Land Use.”
Details on the location and registration will be posted here when available.
Tom will be speaking at three upcoming seminars on water rights topics.
On Thursday, April 14, 2016, at 10:30 to 11:30 a.m., Tom will address the Washington Association of Sewer & Water Districts at the Yakima Convention Center in Yakima, Washington on the topic, “Water Availability and Permitting Issues.”
On Thursday, June 16, 2016, at 3:00 p.m., Tom will co-instruct on the subject “New Mitigated Water Rights,” at The Seminar Group’s “Water Rights in Central Washington” seminar in Wenatchee, Washington.
Law Seminars International has also invited Tom to co-chair this year’s Water Law in Washington seminar in Seattle. A date has not yet been set, but it will likely take place in late July. Tom also co-chaired this seminar last year.
On January 8, 2016, the Plaintiffs’ summary judgment motion in the matter of Magdalena Bassett, et al., vs. Dep’t of Ecology was argued before Judge Gary Tabor of the Thurston County Superior Court. Bassett is a declaratory judgment action challenging the validity of the Dungeness River Basin instream flow protection rule. The complaint alleges that Ecology exceeded its statutory authority in several respects, including failure to allocate water according to the maximum net benefits to the public, as required by the Water Code and the Water Resources Act of 1971. Judge Tabor allowed only one legal issue to be briefed on summary judgment — whether the four-part test for issuance of new water rights was required before Ecology adopts a minimum instream flow water right by rule. The Supreme Court opinion in Swinomish Tribal Community v. Ecology two years earlier implied that the four-part test was required for instream flow rules, because the same statute that the Court held required the four-part test for reservations adopted by rule (RCW 90.03.345) also applies equally to minimum instream flows — both are appropriations with priority dates that are adopted by rule rather than by application for permits. After hearing arguments by Tom Pors on behalf of Plaintiffs, Stephen North on behalf of Ecology, and Dan Von Seggern on behalf of the Intervenor Center for Environmental Law & Policy (CELP), Judge Tabor denied Plaintiffs’ motion for summary judgment but kept the issue alive for a hearing on the full administrative record.
Judge Tabor stated from the bench, “[I]n ruling that I do not find that there is an absolute legal requirement that there be the four-part test, that does not necessarily imply that a four-part test might not be appropriate in this case.” Thus, he denied Ecology’s request for summary judgment that the four-part test is never required for adoption of minimum flow rules as a matter of law. Judge Tabor considered arguments that the entire statutory scheme for water rights appropriation and instream flow protection required some sort of public interest evaluation, such as “maximum net benefits to the public” before all available waters in a basin were appropriated for instream flows. He stated further, “[S]o maximum benefits test, that certainly may be an issue in the administrative review, and there’s some suggestion that based on that rule the four-part test might be required.”
A summary judgment ruling in favor of Plaintiffs would have resulted in the invalidation of the Dungeness Rule because it is uncontested that Ecology did not make four-part test findings before adopting minimum flows in the Dungeness Rule. In fact, Ecology has never made four-part test findings or conducted a maximum net benefits test before adopting any of its 29 instream flow protection rules, many of which have the unintended effect of closing basins to new appropriations for domestic, municipal or other uses without rigid water for water replacement mitigation.
A hearing on the administrative record in the Bassett case is expected before the end of the year. Please contact Tom Pors if you have questions about the Dungeness Rule challenge or challenging other instream flow protection rules that exceeded Ecology’s statutory authority.