Water: law/policy/politics/ethics/art/science

Blockbuster Court Decision Protects Instream Flows and May Slow Rural Sprawl

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Nooksack watershed (WRIA 1) map (Dept. of Ecology)

In 1985, the Department of Ecology adopted an instream flow rule for the Nooksack watershed in Whatcom County.  The rule establishes instream flows for 28 tributaries or points along the mainstem of the Nooksack River.  The rule also establishes partial or full closures of about 50 rivers, streams, and lakes throughout Whatcom County, meaning that new water rights can no longer be appropriated for part or all of the year where these waterbodies are closed.

Nooksack River percent days flows unmet (ECY 2015)Because of these closures, the Department of Ecology no longer issues water rights in Whatcom County unless those rights are conditioned to be interrupted when instream flows are not met.  This happens often in the Nooksack watershed.*  For example, the graph at left shows that instream flows on the mainstem of the Nooksack River are not met up to 80% of the time during summer months.  This low flow problem is evident in many of the tributaries in the watershed (and throughout the state, as discussed below).

Despite these low flow problems and stream closures, Whatcom County has for many years issued building permits for new rural development that relies on permit exempt wells for water supply.  It has long been understood that groundwater is connected to surface waters in the basin, and that pumping from wells captures water that would otherwise discharge to the Nooksack River and its tributaries.  This hydraulic connection between ground and surface waters has important ecological consequences because groundwater inputs create cool water refugia in streams and rivers for endangered salmon and other aquatic species.   Moreover, as climate change alters stream temperatures, groundwater inputs become even more important.  Despite an enormous amount of scientific data showing that groundwater connects to and enhances surface waters, the County did not evaluate the impact of is rural growth practices on Nooksack instream flows.

Whatcom County is required to prepare a comprehensive plan and zoning regulations under the Growth Management Act (GMA).  The GMA contains several provisos that require counties to administer their land use laws in a way that protects water resources.**  In a 2011 case involving Kittitas County, the Washington Supreme Court held that counties must ensure that water is both physically and legally available when implementing land use laws that will result in development that relies on permit exempt wells for water supply.

On October 6, 2016, the Washington Supreme Court followed up the Kittitas County decision, ruling in Whatcom County vs. Growth Management Hearings Board (also known as the “Hirst” case) that Whatcom County’s land use laws do not fulfill GMA requirements to protect water resources.  Instream flow rules represent water rights for the river that enjoy protection from more recent water diversions and withdrawals, such as those allowed under Whatcom County’s comprehensive land use plan and zoning regulations.  Such withdrawals cause impairment of instream flows that is forbidden under Washington law.

The Court further held that, when issuing building permits that plan to rely on permit exempt wells for water supply, it does not matter that the Department of Ecology has not closed a waterbody by instream flow rule.  Ecology’s inaction cannot serve as a basis for counties to evade their duty to protect water resources and uphold water resource laws.  As discussed below, this is a critical point given that a number of Washington’s instream flow rules are outdated and do not reflect the status of water availability.


Washington Instream Flow Rules (Dept. of Ecology April 2015)

As shown in the map at right, Ecology has adopted instream flows in about half the watersheds in Washington.  Many of the streams and rivers protected under these rules are not meeting their designated instream flows, especially during summer months.  However, with few exceptions, most counties do not evaluate whether rural development that is reliant on permit exempt wells is causing depletion of instream flows.  Many counties in Washington are presently issuing building permits that are in direct contradiction to the requirements set forth in the Whatcom County and Kittitas County decisions.  (Real estate purchasers, beware.)

Hue and cry is expected from the development community and local land use agencies regarding the Whatcom County decision.  The Court’s ruling calls into question existing practices of many counties that are doing exactly what the Court held illegal :  issuing building permits without proper analysis of water availability.   County land use practices are causing impairment of instream flows throughout the state.

Exempt well growth in Mason County (NWIFC 2016)

The use of exempt wells to fuel Washington’s rural sprawl has been going on since at least the real estate boom of the early 1990’s, much to the detriment of the state’s rivers and streams and the fish that need adequate flow for survival.  A new report from the Northwest Indian Fisheries Commission, 2016 State of Our Watersheds, documents how permit exempt wells are directly harming treaty salmon fisheries in multiple watersheds in western Washington.  As an example, 259 exempt wells were drilled in the Squaxin Island Tribe’s territories between 2010 and 2104 (adding to a total of nearly 6,000 such wells in the basin), damaging important coho and chum fisheries in Johns Creek, where the instream flow rule was adopted set in 1984.

little-spokane-river-water-well-logs-1922-2008A Spokane County report documents that, in the Little Spokane River watershed, 8,900 exempt wells were drilled between 1976 and 2008, after the LSR instream flow rule was adopted, even though the river does not meet instream flows about 80% of the time.  In fact, LSR surface water rights are frequently ordered to curtail in summer months, thus elevating junior permit exempt wells over senior out-of-stream water rights, as well as the regulatory instream flows.

These are but two examples of situations that are virtually identical to Whatcom County.  In reality, this problem is proliferating all over the state.

The Court recognized that instream flows set by rule are protected as senior water rights, but held also that counties cannot rely on these rules to determine legal water availability.  The Court’s decision on this point is important, because Washington’s instream flow regulations are woefully out of date.  In the 1970’s and early 80’s the methods for identifying the quantities of water needed to protect instream values was very crude, the science of hydraulic continuity was not fully understood, and the problem of inchoate (paper) water rights was nowhere on the radar screen, nor were the treaty-based instream water rights of Washington’s tribes.   Instream flow rules are simply not a reliable indicator of how much water is in a stream or aquifer, and how much is available for new appropriations, including exempt wells.

For many years, there has been wholesale failure by the Department of Ecology, state lawmakers, and local authorities to rein in uncontrolled use of exempt wells.  State economic policy has promoted growth at any cost, causing great harm to Washington’s waterways.  By failing to step up and control groundwater use, the state and counties have left themselves open to lawsuits and adverse court decisions.  This trend will continue until a more enlightened approach to water management prevails.

Fundamentally, water managers must recognize that Washington’s water resources were over-appropriated many years ago.  We have come to the end of the water frontier.  Indeed, with climate change baying at the door, we must find ways to use less water and restore water to streams and aquifers that are even now in sharp decline.  A paradigm shift is needed and, with the help of the Washington Supreme Court, is getting underway.

Here are a few pertinent quotes from the Court’s decision in Whatcom County vs. WWGMHB (Oct. 6, 2016):

The GMA places an independent responsibility to ensure water availability on counties, not on Ecology. To the extent that there is a conflict between the GMA and the Nooksack Rule, the later-enacted GMA controls. Slip Op. at 10.

The GMA requires that an applicant for a building permit for a single family residence or a development must produce proof that water is both legally available and actually available. But [Whatcom] County does not require any showing that water is available for a building permit when the applicant is relying on permit-exempt water appropriation. This failure by the County is the crux of this case. Slip Op. at 19.

The Board found that [Whatcom County’s land use] provisions result in water withdrawals from closed basins and senior instream flows – flows that the record indicated drop below the minimum levels 100 days out of the year. The Board properly held that this conflicts with the requirement placed on counties to protect water availability under the GMA, as well as our holding in Postema, 142 Wn.2d 68.  Slip Op. at 25.

Counties may not rely on Ecology’s inaction in failing to close a basin as a determination that water is presumptively available for appropriation. Such inaction fails to provide any assurance that a new permit-exempt well will not infringe on senior water rights, and thus fails to satisfy the obligation the GMA places on counties to ensure that water is legally available before issuing a building permit.  Slip Op. at 34, note 13.



*Naiads has previously reported on Ecology’s shocking decision to issue interruptible water rights to illegal water users in the Nooksack watershed.  See our posts: The Tale of the Nooksack Nine and Nooksack Water Thievery Redux.

**For example, the GMA establishes a goal to “protect the environment and enhance the state’s high quality of life, including air and water quality, and the availability of water.”  RCW 36.70A.020(10). Comprehensive plans must include a land use element that “shall provide for protection of the quality and quantity of groundwater used for public water supplies.”  RCW 36.70A.070(1).  The rural element of comprehensive plans shall protect “critical areas, as provided in RCW 36.70A.060, and surface water and groundwater resources.”  RCW 36.70A.070(5)(c)(iv).  Applicants for building and subdivision permits must demonstrate adequate water supply for their developments.  RCW 19.27.097 and 58.17.110.

Author: naiads

Opinionated (retired) public interest water lawyer

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