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.

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:

capitol-421196_1920.jpg

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

New Yakima County Utility Attempting to Balance Rural Development and Water Use

Yakima County is investing $500,000 in grant money to establish a utility it hopes will help resolve water rights and water use conflicts for new developments in rural areas of Yakima County. Aspect’s Dan Haller was asked to weigh on the current value of water rights in the region based on our work assisting Kittitas, Spokane, Chelan, Klickitat, and other counties facing similar issues.  Read the full article HERE.

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.

From Water Wars to Water Policy – 100 Years of Washington Water Code

This year marks 100 Years of water rights in Washington state. In parallel with this centennial, water rights have received a flood of recent attention in the public eye, primarily because of the role the Hirst decision has played in halting the state’s $4 Billion capital budget.

Image credit: Washington State Department of Ecology

Image credit: Washington State Department of Ecology

To take the pulse of the water managers, policy makers, and others who steer water law in the state, Aspect conducted a reporter’s roundtable to hear thoughts on Washington water policy today and for the future. Read their account in this month’s “The Water Report”, as well as a fascinating look back to the pre-code, wild west era where dynamite was occasionally preferred as a dispute resolution tool for water management.

Also, be sure to check out the excellent story map and video series developed by the Washington State Department of Ecology on this topic. Lastly, the water code centennial will be the center of attention of next month’s American Water Resources Association – Washington Section (AWRA-WA) State Conference,  October 3, 2017 in Seattle, Washington.  
 

Seeing the Finish Line on New Lake Chelan Water Resources

Chelan PUD and Ecology, with technical water rights support from Aspect, are close to finalizing an agreement that frees up over 5,200 acre-feet per year of water rights for new development in the Lake Chelan Basin. This exciting milestone is the result of years of work by Ecology and Chelan PUD to assess how much water remains in a 65,000 acre-feet annual water reserve described in a 1992 Agreement. Read more details in the Wenatchee World article HERE.

Reach 4 of the Chelan River

Reach 4 of the Chelan River

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.

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!

Know Your Source: Exploring Hydrogeology’s Role in Water Rights Transfers

Check out the January issue of The Water Report, where Aspect’s Associate Hydrogeologist Tyson Carlson explains the key role hydrogeologic evaluation plays in successful water rights transfers. The article revolves around the “same source” concept and how understanding the hydrogeologic system of a site will help you manage risk, expand transfer options, and bring more certainty to regulatory approval.

Read the article here.

This article is reprinted with permission from The Water Report. A review copy of The Water Report is available to anyone, upon request, at www.thewaterreport.com.

Examples of Same Source Part of a Common Flow Regime

Examples of Same Source Part of a Common Flow Regime

Tim Flynn Presenting on Adapting Water Supplies After One of Biggest Dam Removals in US History

Aspect’s Principal Hydrogeologist Tim Flynn will be presenting on adapting water supplies post-Condit Dam removal on January 26 at the ACEC Oregon’s ACEC/SW WA Public Agency Liaison meeting. Aspect has been helping the City of White Salmon for over a decade to improve municipal water supplies. Tim will discuss the progression of water rights affecting the Dam and the City; the ongoing development of source alternatives to reduce demand on local surface waters; and the use of Aquifer Storage and Recovery (ASR) to reduce surface water diversions during critical low flow periods. Learn more and register here.
 

Aspect’s Dan Haller to Talk Water Rights at the 2016 Grape and Wine Issues Caucus

Continuing Aspect’s long tradition of supporting wine grape growers in Eastern Washington, on November 9th, Aspect’s Dan Haller will explain what you need to know to navigate water policy – acquiring, changing, and protecting water rights. This 2016 Grape and Wine Issues Caucus is coordinated in partnership with the Washington Association of Wine Grape Growers and the Washington Wine Institute and will be held at the Yakima Convention Center in Yakima, WA.  Dan's discussion will include:

  • Water rights 101:  how they are created and who has them
  • How to acquire new rights or change existing rights
  • Changing crops and spreading to add new acres
  • Adding wells via changes or Showings of Compliance
  • Protecting water rights from relinquishment
  • How state and local water banking works

Learn more about the caucus HERE. View Full Agenda. 

The Need for Water Banking

A recent Washington State Supreme Court ruling has changed how counties review permit-exempt (household) wells for building permits under the Growth Management Act. This ruling states that counties cannot approve new development using permit-exempt wells if there would be impairment to instream flows or impact to closed water bodies. The Yakima Herald-Republic looks at how the recent Supreme Court ruling affects water rights in Kittitas County.  Aspect’s Dan Haller is quoted on how water banks are currently in place and can work beyond the Yakima Basin. You can read the article here.

Source: SOFIA JARAMILLO/Yakima Herald-Republic

Source: SOFIA JARAMILLO/Yakima Herald-Republic

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. 

Meet Andrew Austreng

Aspect welcomes Andrew Austreng, LG to the team! Andrew joins our Seattle office as a Project Hydrogeologist with a wide range of experience in supporting water resources and water rights projects. Here are five questions we asked to get to know him better:

Where are you from? If you’re not from the Pacific Northwest, what brought you here? My wife and I grew up in North Dakota. We came to the PNW because we felt like it has it all – great culture, beautiful landscape, and exciting professional opportunities. Needless to say, we have not been disappointed!

What inspired you to pursue hydrogeology? What made you curious about it? I grew up in a rural area surrounded by agriculture, where most people were served by private groundwater wells. I often found myself considering how the water needs of an entire household or community could be met by simply installing a pipe in the ground (I would later come to find out that it isn’t quite that simple). After my first introduction to geology, I understood the detective-like nature of hydrogeology, and knew that it would be a lifelong interest and satisfying career.

What do you like best about your area of expertise? What excites you and keeps you motivated? Focusing on water resources allows me to be part of something that often effects many people. It gives a unique perspective on preserving a valuable resource, while simultaneously serving the needs of individuals. There’s something very satisfying about getting someone the water they need for their home or business while knowing that you’ve done your best to preserve that same resource for others.

What do you do like to do when you aren’t working? Spending time with family! My wife and I have a newborn at home, and we enjoy spending a lot of time with our new family. That being said, I’ve also been known to squeeze in a few ski trips throughout the winter months, and I really enjoy honing my skills as a novice mechanic.

Where in the world would you like to travel next? Madagascar. I’d love to spend time exploring for plants and animals. There’s an area called the Forest of Knives that made my list – it’s a bizarre scene of limestone peaks filled with all sorts of birds and lemurs. On the other hand, with our newly expanded family we could happily settle for a week on a sandy beach!

See Aspect at the Yakima Ag Expo January 7th and 8th

Come visit us at our booth at the Yakima Ag Expo on January 7th and 8th at the Yakima Valley Sundome. Members of our water resources team will be providing one-on-one water rights evaluations for conference attendees. We’ll be there to answer your questions about current water right trends in Washington state, and handing out some free goodies as well.

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

Tim Flynn to Talk Water Right Strategies for Irrigators at the 2015 WSWRA Spokane Conference

Over December 2-4, the Washington State Water Resource Association’s (WSWRA) annual conference in Spokane will bring together experts and public policy leaders to discuss important 2016 water issues, including climate change, drought response, and many other relevant irrigation topics. Aspect’s president and principal hydrogeologist Tim Flynn will present on day one of the conference in the Irrigation District Workshop. His presentation on “Recent Case Studies of Effective Water Right Strategies to Support District Operations” will examine irrigation district’s potential risks and opportunities and highlight case studies of the White Salmon and Methow Valley Irrigation Districts. Learn more about the conference HERE.

Dan Haller to Present on Water Right Mitigation at Seattle Law Seminar on November 6

Aspect’s Dan Haller will speak on a panel to discuss water rights mitigation at the 8th Annual Water Rights Transfers Seminar in Seattle.

Mitigation—i.e., offsetting impacts from a new water right by either trading water (in kind mitigation) or providing habitat improvement or investment (out of kind mitigation)—is THE topic in Washington water circles because of the Washington State Supreme Court’s recent Foster vs. Ecology decision. This groundbreaking ruling overturned Ecology’s permit approval, thus cancelling the City of Yelm’s water right permit. This timely panel discussion will discuss recent case law and what it means for future water right permitting strategy.

Learn more or register for the conference HERE.