Skagit PUD and County Explore Solutions for Legal Water Availability

The Skagit River - Photo Credit: www.rivers.gov

The Skagit River - Photo Credit: www.rivers.gov

In the face of growing development in rural areas across Washington state and limitations on legal water availability stemming from recent court decisions, public agencies like Skagit Public Utility District and Skagit County are wrestling with how to supply water to rural areas.

Potential homeowners, builders, state officials, and tribes are looking for solutions that are agreeable for the community and habitat, and that overcome legal constraints on water availability. A number of solutions are under consideration, including water banking, instream flow augmentation, and storage and release projects. Aspect is at the forefront of water banking facilitation and other rural solutions to address water availability across the state. For example, we’ve helped several private and public entities – including Kittitas and Spokane Counties -- successfully set up a water bank.

Aspect's Dan Haller and Carl Einberger are working with Skagit County PUD to evaluate what this would mean for the County and PUD. They recently joined a combined commissioner meeting with the Skagit County PUD and Skagit County to explore the concept and take questions from the Board.

See their discussion on video here.

300 Spokane Residents Turn Out to Hear About Hirst Water Rights Decision

Aspect’s Dan Haller and Carl Einberger helped Spokane County (County) officials present on the relevance of the "Hirst" Decision to a packed public meeting on May 19th. Over 300 local residents showed up to hear the County and Aspect go over:

  • The context that led up to the Hirst decision, including some understanding of the evolving interpretations of Washington State water rights law;
  • The role of watershed planning and hydrogeology studies in the Little Spokane basin;
  • Why the County has been proactively planning to implement a water bank; and
  • How a water bank works.

As counties across the state continue to grapple with the implications of Hirst and what it means for property owners and developers in rural areas, Aspect expects public outreach efforts to continue to help guide the conversation over this evolving topic and legislation.

Landmark Hirst Water Rights Decision Increases Burden on Counties to Evaluate Exempt Well Impacts

In a landmark decision on the use of exempt wells and county responsibility for evaluating impacts from the wells on instream flows, the Washington Supreme Court (Court) recently overturned a lower court decision in the Whatcom County v. Hirst case.  The lower court decision appealed in this case essentially directed local governments to follow the Washington Department of Ecology’s (Ecology) interpretation of instream flow rules in determining water availability. This Court decision rescinds that direction, noting that the Growth Management Act (GMA) places an independent responsibility to ensure water availability on counties, not on Ecology.  The decision also noted that the fact that county provisions are wholly consistent with Ecology’s regulations does not, by itself, render them consistent with GMA requirements.

The Ruling Constrains Exempt Well Use in Washington

Under existing law (RCW 90.44.050), the groundwater permit exemption allows, for a limited number of purposes, water users to construct and develop groundwater wells for small quantities of groundwater without obtaining a permit.  According to the new ruling, there is no question that a permit-exempt well may not infringe on an earlier established right to water, including instream flow rules, under the doctrine of prior appropriation.  The Court also found it contradictory that Ecology must consider the effect of groundwater appropriations on minimum flows when issuing water right permits, while counties did not consider these same impacts when issuing building permits with exempt wells.  This means that in a basin with adopted minimum instream flows, any new exempt well or exempt well drilled after adoption of flows may be subject to interruption when flows are not met, rendering these wells legally unreliable as a continuous domestic water source.

The Ruling Increases County Responsibility for Water Availability Determinations under GMA

In addition, this ruling imposes a strict standard for county review of cumulative impairment from exempt wells due to rural development.  Aspect has been working with Spokane, Stevens, and Pend Oreille Counties to establish a water bank for the Little Spokane River watershed.  A water bank is a mechanism that facilitates transfer of water rights between sellers and buyers through use of the state’s trust water right program, using banked water as mitigation for new water uses. The three counties anticipated that use of unmitigated exempt wells would continue to be more restricted in the state and proceeded with water bank development to proactively address this concern, along with addressing other future water needs in the basin. The recent ruling in Whatcom County v. Hirst only increases the need for local jurisdictions to be directly involved with proactive water resource management.

Banking Water for Future Use

The future water availability in many areas of Washington State is uncertain. To address these uncertainties, Aspect is working with Spokane, Stevens, and Pend Oreille counties to develop a regional water bank which will allow for redistribution of water rights between buyers and sellers in the Little Spokane watershed.

Aspect’s Carl Einberger co-authored an article in the American Water Resources Association Newsletter detailing this essential project.

READ IT HERE