The State’s Longest-Running Water Rights Adjudication is Coming to an End

In 1977, James J. Acquavella’s name was listed first on the summons when Ecology filed a petition for an adjudication to determine the legality of all claims for surface water in the Yakima River Basin – birthing the Ecology v. James Acquvella, et al water rights case. Forty-two years and 2,500 claimants and interested parties later, it is coming to a close. Some takeaways for this milestone moment in Washington state water management are:

  • Starting in 1977, the Department of Ecology v. Acquavella adjudication is the longest-running general adjudication in state history, determining the validity and establishing priority of surface water claims in the Yakima Basin.

  • With the issuance of the Final Decree by Yakima County Superior Court, water right holders in the Yakima Basin will finally have certainty over the authorized quantities and purposes and places of use of their water right claims.

  • Adjudicated water right certificates will be issued by Ecology for all claims determined by the Court to be valid; water right holders will no longer need to get approval of the Court to complete a change or transfer a water right, but instead file applications with Ecology like everywhere else in the State.

  • During the adjudication, stakeholders in the Yakima Basin continued to lead the state in providing innovative approaches to water resource management challenges, including early adoption of water banking and mitigation markets to ease permitting of new water rights, and development and implementation of the Yakima Basin Integrated Plan.

Aspect has worked on a variety of Aquavella claims over the decades – including hundreds of due diligence water right evaluations; helping buyers/sellers move and change these rights; and developing water banks through the State’s Trust Water Right Program to support efficient transfer of existing rights and permitting of new, mitigated water rights.

Read the fascinating tale of water management in the Yakima River Basin and the implications of this ruling in this great Department of Ecology blog post.

See what else Aspect’s Water Resources practice has been up to.

Learn about Washington Water Law

Aspect’s water law expert, Dan Haller, will be presenting on Water Banking for Agricultural Water Supplies at the 27th Annual Water Law in Washington conference (June 14-15). This year’s conference focuses on major legislative changes, new case law, and important practical information for water rights and resource management in the State of Washington.

Aspect’s Dan Haller Sharing His Water Rights Strategies and Discussing the New Exempt Well Legislation at the Central Washington Agriculture Seminar

On April 6th, Aspect’s Dan Haller will be speaking on three water right topics: how to stretch your existing rights to cover new irrigated lands (spreading), the new legislation on rural exempt wells (ESSB 6091), and relinquishment protection strategies

Join Dan and other distinguished speakers for the FREE Central Washington Agriculture Seminar.

What the Hirst “Fix” Signals for WA's Rural Water Users and Managers

Last month, after months of delay that even stopped Washington state’s capital budget from passing, the Washington State House and Senate passed ESSB 6091 to address legal water availability issues for exempt well users stemming from the landmark Whatcom County v. Hirst case. Because of the complexity of implementing the new law, it is too soon to know all of the consequences of this proposed fix. However, here are several early takeaways:

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What it means

  • In many, but not all, areas of the state, the new law allows building permits relying on exempt wells in areas with instream flows to be approved by local jurisdictions without reviewing each case for impairment considerations.
  • Overall impairment to instream flows caused collectively by new exempt wells is to be addressed through restarting the watershed planning process in Water Resource Inventory Areas (WRIAs) with no adopted Watershed Plan, or through an update of existing adopted Watershed Plans.  
  • Plan recommendations to improve streamflows may include, among other options, acquiring senior water rights, water conservation, water reuse, off-channel storage, and aquifer recharge. 
  • Several watersheds were specifically excluded from the law based on other regulatory considerations, including:
    • Watersheds with instream flow rules that explicitly regulate exempt wells and provide for reserves, such as the Stillaguamish, Methow, and Wenatchee basins. These watersheds must rely on the finite reserves of water already allocated.
    • Federally regulated watersheds (Yakima basin).

How we got here

Under existing state 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. In October of 2016, 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) ruled in the Whatcom County v. Hirst case that the Growth Management Act (GMA) placed an independent responsibility to ensure water availability on counties, not on Ecology. Counties across the state had varying responses to the decision, with some placing a moratorium on granting building permits relying on unmitigated exempt wells, others including disclaimers on proof of legal water availability, and others taking a wait and see approach.

New $500 fee and new Exempt Well Use Limitations

The new Bill 6091 requires a new $500 fee to be paid as part of obtaining a building permit relying on an exempt well, to support watershed planning efforts.  In basins with adopted Watershed Plans, the law allows an exempt well to use a maximum average of 3,000 gallons per day, while in basins with no watershed plan, a limitation of 950 gallons per day is imposed.

Understanding of Bill 6091 Still Evolving

The Washington Department of Ecology is responsible for implementing ESSB 6091, and is still formulating relevant policy. As general understanding and consensus evolves, Aspect will continue to comment on this for clients.

The following link provides the Washington Department of Ecology’s Initial Policy Interpretations on ESSB 6091:https://fortress.wa.gov/ecy/wrx/wrx/fsvr/ecylcyfsvrxfile/WaterRights/wrwebpdf/6091-EcologyPolicyInterpretations.pdf

The following link provides the Hirst Supreme Court Decision:https://fortress.wa.gov/ecy/wrx/wrx/fsvr/ecylcyfsvrxfile/WaterRights/wrwebpdf/91475-3opinion.pdf

Aspect's Dan Haller Presenting on Water Law, Water Banking, and Water Rights - 9/28 & 9/29

Washington Public Utility District Association Conference - 9/28

On day two of this year’s WPUDA conference in Leavenworth, Aspect’s Dan Haller will be participating on a morning session panel titled “What’s a Water Bank and How Does it Work?” During the afternoon sessions, Dan will be giving a Water Rights 101 presentation.  Public Utility District's manage numerous water rights over domestic systems, dams, hatcheries, and Parks, which put them in a unique position to participating water Banks to accomplish their overall District. Protecting District water rights is a key priority to ensure they are available for multiple District business needs.

Yakima County Bar Association - 9/29

Dan will be giving a presentation on the Hirst decision and how it affects Eastern Washington water rights to the Yakima County Bar Association September 29th. The Hirst decision changed the regulatory framework of County rural building permit and land use policies and is prompting numerous changes from new regulations, moratoriums on building, creation of water Banks, and water write transactions.

The Hirst Decision: The Water Law that Halted WA's Budget

While critical to water use and supply in Washington state, water rights typically keep a low profile in the public eye. That's all changed over the last couple of weeks as the Hirst decision has made the headlines as a key political sticking point that has, for now, stopped the state's $4 billion capital construction budget from being approved.

With the spotlight on this landmark water use decision, Aspect's Dan Haller was interviewed by the Yakima Herald to help understand it. The article also hears from builders and counties grappling with what Hirst means for them. 

Read it here:  Reporter's Notebook: Wondering about the Hirst decision, the state Supreme Court water use case that became a key political tactic in Olympia? Read this primer.

Aspect Helps Kittitas County Offer 'Over-the-Counter' Water Rights

Aspect has been assisting Kittitas County with implementation of their water bank. The newest feature is a general permit that allows the County to cover non-exempt uses in a streamlined manner through issuance of mitigation certificates, similar to their over-the-counter approach for exempt well mitigation.  This allows property owners to continue to interface in a streamlined and coordinated manner with Kittitas County instead of seeking one-on-one solutions with Ecology, that would be more time-consuming and expensive.  This is another example of how Aspect continues to assist counties with innovative solutions to Hirst-related issues

Check out this article by The Daily Record News for more detail!

Aspect President, Tim Flynn, to Guest Lecture at Seattle University Law School

Aspect President, Tim Flynn, has been invited by Michael O’Connell, former partner at Stoel Rives LLP and Adjunct Professor at Seattle University, to guest lecture at Seattle University’s Water Law course this November. Tim is excited to share what he’s learned in the decades of providing water rights and aquifer storage and recovery services to clients throughout Washington’s diverse landscapes.

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.

Enloe Dam Water Rights Case Upheld—Permitting Path Stays More Certain for Applicants

The Washington State Court of Appeals ruled last week that the Department of Ecology appropriately conditioned the approval of a water right permit for the Public Utility District No. 1 of Okanogan County's (PUD) hydroelectric project on Enloe Dam. 

The case revolved around the public interest test in RCW 90.03.290, and the application of the protection of aesthetics of public waters in RCW 90.54.020, as well as a previously-issued 401 Certification under the Clean Water Act.  The Court of Appeals upheld the conditioned approval of the water right permit with a 5-year adaptive monitoring plan to evaluate the aesthetics of different flow levels over the dam and falls.  Because the final flow levels necessary to protect aesthetics were not known at the time of permit issuance, the appellants (Center for Environmental Law and Policy, American Whitewater, and North Cascades Conservation Council) argued that Ecology did not have authority to approve the permit.  The Court of Appeals disagreed.  “We conclude that Ecology had authority to issue a ROE, and water permit, which was subject to a condition to ascertain information that was not available prior to proceeding with the Project. Ecology did not abuse its discretion in determining that the PUD's water permit should issue subject to the stated conditions.” 

This is an important finding in water right permitting because not all conditions of a project can be known with clarity at the time of applying for a water right permit.  Ecology’s ability to approve a permit, subject to verification of conditions or adaptation-provisions for changing conditions, is important authority to retain.  A copy of the decision can be viewed at:  https://www.courts.wa.gov/opinions/pdf/748416.pdf. Contact Dan Haller (509.895.5462) at Aspect Consulting with any questions. 

Tim Flynn Sits on Scientific Risk Management Panel at the 24th Annual Water Law in Washington Conference

In late July 2015, the Washington Water Law Conference brought together water law practitioners, water users, and other experts to discuss current issues in Washington State’s water law. Aspect president and principal hydrogeologist Tim Flynn participated in a joint panel presentation on “Science vs. the Precautionary Principle: In what areas can more study lead to different decision making?” The presentations explored the technical and regulatory policy implications of reduced data collection and basic science in a resource constrained era on water right decisions.  The precautionary principal was illustrated through case studies of established instream flow rules and the challenges associated with limited stream flow data particularly in snow-pack driven watersheds such as the Methow River Basin.  Topics covered by other panelists included integrated water resource management issues and Ecology’s water right decision framework.

Groundbreaking Yelm Water Right Decision Signals Fundamental Shift in How Water Rights Will Get Approved

In a decision that has wide-ranging consequences for water right projects throughout the state, the Washington Supreme Court (Court) cancelled the city of Yelm’s (Yelm) water right permit. In reversing the Washington State Department of Ecology’s (Ecology) approval of the Yelm’s permit, the Court ruled that Ecology had erroneously used the Overriding Consideration of the Public Interest (OCPI) determination and violated existing instream flows. Ecology had conditioned approval on an “out-of-kind” mitigation package—featuring retiring existing water rights, habitat protection, and stream restoration—to offset the water use from the permit.

The Court’s decision was not unanimous, with three of the nine justices believing that the law supported affirmation of Ecology’s decision.  The dissenting opinion did not find that there was support for a “temporary” criteria for OCPI determinations. The dissenting opinion also saw significant differences between the facts in the Foster vs. Ecology decision (Yelm) and the precedent-setting 2013 Swinomish Indian Tribal Community vs. Ecology decision (Swinomish) — where the Yelm decision focused on permit-based OCPI and net environmental benefit, the Swinomish decision focused on rule-based OCPI and net environmental harm. Lastly, the dissenting opinion held that this ruling effectively changed the OCPI standard from a high bar to an unattainable standard.

OCPI and Out-of-Kind Mitigation Strategies in Jeopardy

Ecology uses OCPI as a tool to approve water right permits when water availability is limited, but it believes the public benefits of approval outweigh any impacts on stream flows.  The key to the Court’s analysis was a finding that the term “withdrawal” in the OCPI statute implied a temporary use of water, while an “appropriation” implied a permanent use of water.   The Court held that the OCPI exception allowed only temporary impairment of instream flows and that municipal water needs do not rise to the level of extraordinary circumstances required to apply the OCPI exception, no matter how much mitigation is added to the project.  

Means Water “Re-Timing” Becomes a Go-to Permitting Strategy

The Yelm decision implies a fundamental re-thinking on how water-short basins can access water. The implication of this ruling, coupled with the Court’s earlier ruling in the Swinomish case, is that no permanent water right will be able to rely on anything other than water-for-water mitigation, in-time and in-place, and no amount of mitigation can offset even de minimis (one molecule) impacts to adopted instream flows.  By taking out-of-kind mitigation off the table, even if it addresses the limiting factors to salmon recovery in a particular basin, likely means a return to a focus on small storage, “pump-and-dumps”, and other water re-timing strategies as the only means of gaining project approval.  

Dan Haller to Speak at the October 2015 Osoyoos Lake Water Science Forum

Aspect’s Dan Haller will join other water experts on a panel to talk about British Columbia versus Washington water supply and management. The Forum will focus attention on sustaining the ecological health of Osoyoos Lake, along with the related well-being of the Okanagan Basin on both sides of the border. Learn more about the Water Science Forum HERE.

Dan Haller Speaks at Washington Water Law Conference

Aspect’s Dan Haller spoke at the Water Law in Washington conference on August 27 in Seattle, WA.

In a session on New Tools in Water Resource Management, Dan discussed how the Washington State Department of Ecology uses the Washington Irrigation Guide to determine water duty and extent and validity of irrigation water rights.