2016 Legislative Action Nips at Edges of Washington Water Problems

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.

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