By Tara J. Jackson, Schroeder Law Offices, P.C.
On January 18, 2018, just eight days into the Washington State 2018 legislative session, the Legislature passed Senate Bill 6091, dubbed the “Hirst fix.” Senate Bill 6091 amended, RCW 19.27.097, RCW 58.17.110, RCW 90.03.247, and RCW 90.03.290. The Bill added a new section to chapter 36.70A RCW and chapter 36.70 RCW, and added a new chapter to Title 90 RCW.
Hirst Decision
Hirst, refers to a 2016 Washington State Supreme Court decision in Whatcom County vs. Hirst, Futurewise, et al. In Washington State, under the Growth Management Act (GMA), chapter 36.70A RCW, counties are required to complete comprehensive growth planning that protects groundwater and surface water resources. Section 19.27.097 RCW and section 58.17.110 RCW, require that the county receive evidence of an adequate water supply from applicants for building permits or subdivisions before allowing the development.
The issue before the Supreme Court in Hirst was review of the Court of Appeals’ reversal of a county hearings board’s decision that a county comprehensive plan did not comply with the GMA because it did not protect the quality and availability of water. Specifically, the plan’s reliance on the Department of Ecology’s (“Ecology’s”) instream flow rules to find that a reliable year round supply of water exists for permit-exempt wells, sufficient to allow issuance of building permits for new homes or development relying on a permit exempt well, unless the Department has declared the area closed to permit-exempt uses.
The Court found the GMA requirement that the comprehensive growth planning of a county protect groundwater and surface water resources required the county to make its own decision regarding whether water was legally available, meaning whether water could be appropriated without impacting existing water rights, prior to issuing building permits. Accordingly, the county could not find water to be available for a permit-exempt well, simply because Ecology had not closed a basin to new groundwater appropriations.
While the Hirst Decision was specific to Whatcom County, the precedent was interpreted to apply to counties subject to the GMA. Some counties subject to the GMA reacted by refusing to issue building permits or placing the burden for proving water availability fully on the applicant.
Hirst Fix
Senate Bill 6091 is deemed the “Hirst Fix” because it changes various portions of the Revised Code of Washington (“RCW”) to allow counties to rely on Ecology’s determinations regarding the legal availability of water to issue building permits, as was done prior to the Hirst Decision. The Bill’s amendment of RCW 19.27.097, “Building permit application—Evidence of adequate water supply—Applicability—Exemption,” provides a framework for counties to evaluate whether adequate water exists to allow issuance of a building permit based on the watershed in question and other circumstances. An integral piece of this framework is the Bill’s addition of a new chapter under Title 90, “Water Rights—Environment,” which allows new building permits to be issued for projects relying on permit-exempt wells with additional requirements while a process for further updating Ecology’s instream flow rules to mitigate permit-exempt uses is undertaken.
Water Availability for Existing Permit-Exempt Wells
The Bill adds language to RCW 19.27.097 regarding the standard for evidence of adequate water supply for existing permit-exempt wells. The new language provides that evidence of adequate water supply exists for any exempt use made in accordance with RCW 90.44.050 from a groundwater well that was constructed to meet well construction standards prior to the effective date of the addition to the statute (January 19, 2018). (Sec. 101, 5). This change in language allows counties to issue building permits for projects relying on a water supply from an existing groundwater well that was constructed to meet well construction standards prior to January 19, 2018.
Water Availability Determinations for New Permit-Exempt Wells
The Bill adds a new section to both Chapter 36.70(A) RCW, “Growth Management—Planning by Selected Counties and Cities” and Chapter 36.70 RCW, “Planning Enabling Act.” The new sections allow counties subject to the GMA to comply with the requirement that their comprehensive growth management planning protects groundwater and surface water resources by relying on or referring to minimum instream flow rules adopted by Ecology to make determinations of water availability for building permits or development. (Sec. 102-103).
The Bill adds new language to RCW 58.17.110, “Approval or disapproval of subdivision and dedication-Factors to be considered—Conditions for approval—Finding—Release from Damages.” The new language allows a city, town or county legislative body to make findings that an adequate water supply exists for a subdivision if the water supply will be provided through a permit-exempt groundwater use. (Sec. 104, 5).
The Bill makes additional changes to RCW 19.27.097, which essentially split the state into four categories based on whether Ecology has established instream flow rules for the area that specifically regulate permit-exempt water uses and the status of that area’s development of a watershed plan. Each category is subject to different standards for evaluation of water availability to allow the county to issue a building permit for a project relying on a yet to be constructed permit-exempt well. (Sec. 101, 1(b)-(e)).
Group 1: The new section of RCW 19.27.097 at sub-part 1(e) outlines that, if an area of the state is not subject to Ecology’s instream rules, physical and legal evidence of adequate water supply may be shown by submission of a water well report showing compliance with well construction standards. Thus, counties in areas of the state in which Ecology has not set instream rules may find that adequate water supply exists to allow issuance of a building permit for a project that relies on a permit-exempt well if provided with a water well report. (Sec. 101, 1(e)).
Group 2: The new section of RCW 19.27.097 at sub-part 1(b) provides that, in watersheds with instream flow rules that specifically regulate permit-exempt groundwater uses, evidence of adequate water supply (to determine if a building permit may be issued) is analyzed under the instream flow rules for the watershed. The following 10 watersheds explicitly regulate permit-exempt groundwater uses through their instream flow rules: Stillaguamish, Quilcene-Snow, Elwha-Dungeness, Lewis, Salmon-Washougal, Walla Wall, Wenatchee, Entiat, Methow, and Middle Spokane. Watersheds for which Ecology adopts further instream flow rules to offset potential impacts from permit-exempt uses, as required by the new chapter of the RCWs the Bill adds under Title 90, will also fall into this group. (Sec. 101, 1(b)).
Group 3: The new section of RCW 19.27.097 at sub-part 1(c) outlines watersheds with instream flow rules that do not specifically regulate permit-exempt groundwater uses, for which evidence to the county of adequate water supply to allow for issuance of a building permit must be consistent with a section of the new chapter the Bill adds to the RCWs under Title 90. The section is outlined in the Bill as Sec. 202. The watersheds included in this group are as follows: Nooksack, Nisqually, Lower Chehalis, Upper Chehalis, Okanogan, Little Spokane, and Colville. (Sec. 101, 1(c)).
Group 4: The new section of RCW 19.27.097 at sub-part 1(d) outlines watersheds with instream flow rules that do not specifically regulate permit-exempt groundwater uses, for which evidence to the county of adequate water supply to allow for issuance of a building permit must be consistent with a section of the new chapter the Bill adds to the RCWs under Title 90. The section is outlined in the Bill as Sec. 203. The watersheds included in this group are as follows: Snohomish, Cedar-Sammamish, Duwamish-Green, Puyallup-White, Chambers-Clover, Deschutes, Kennedy-Goldsborough, and Kitsap. (Sec. 101, 1(d)).
Group 3 and 4 are both made up of watersheds for which instream flow rules exist that do not specifically regulate permit-exempt groundwater uses. However watersheds placed in Group 3 have completed watershed planning, while watersheds placed in Group 4 have not. New permit-exempt groundwater withdrawals that have potential to impact the flows of a closed water body or impair instream flows are allowed for Group 3 and 4 under Sec. 202 and 203 respectively.
Sec. 202 requires watersheds within Group 3 to update current watershed plans to mitigate the potential impact of permit-exempt well uses. Ecology will approve the plans and may adopt rules based on the plans for authorization of permit exempt well uses. In order to approve a plan, Ecology must be able to find that the plan will offset the next 20 years of projected new water uses to produce a net benefit to surface water sources. If Ecology finds a plan does not meet this requirement, then it must adopt rules to ensure mitigation of permit-exempt uses for the watershed(s) in question.
If Ecology cannot adopt a plan for Nooksack and Nisqually by February 1, 2019, then it must adopt rules for these watersheds to offset permit-exempt uses by August 1, 2020. If Ecology cannot adopt a plan for the remaining watersheds in Group 3 by February 1, 2021, then it must adopt rules for these watersheds to offset permit-exempt uses by February 1, 2021.
Sec. 203 requires Ecology to establish watershed restoration and enhancement committees for watersheds within Group 4. Ecology must collaborate with the committees to prepare and adopt watershed enhancement plans that mitigate the potential impact of permit-exempt well uses for each watershed within Group 4 by June 30, 2021. As with approval of plans developed for Group 3, Ecology must be able to find that the plan will offset the next 20 years of projected new water uses to produce a net benefit to surface water sources in order to adopt the plan. After adoption, Ecology will determine if rule making should be undertaken to incorporate aspects of the plan.
If Ecology cannot adopt a plan advanced by the committee prior to the deadline, then the salmon recovery funding board will review the final draft plan. The board will make recommendations to allow the plan to meet the requirement that its mitigation efforts result in a net gain to surface water sources based on projections for 20 years of new appropriations. Ecology will review the recommendations and make amendments as needed prior to adoption of the plan. Ecology then has six months to initiate rule-making to incorporate the necessary portions of the adopted plan into rules to result in the mitigation needed to offset permit-exempt uses. Ecology must adopt amended rules within two years of initiating the rule-making.
Until the plan approval and rule making process is completed, counties may issue building permits and approve development for projects relying on water from permit-exempt groundwater uses from watersheds within Groups 3 and 4. However, the withdrawal may be for domestic use only, applicants must pay a fee and comply with maximum withdrawal limitations. The fee is $500, $350 of which is provided to Ecology. Maximum annual withdrawal is limited to 3,000 gallons per-day per-connection for watersheds within Group 3 and 950 gallons per-day per-connection for watersheds within Group 4. Withdrawals for Group 4 may be further limited, if a drought emergency order is issued, to no more than 350 gallons per-day per-connection for indoor use only, unless for maintenance of a fire control buffer.
Watersheds within the Skagit River Basin (Lower Skagit-Samish and Upper Skagit) are not included in Groups 1-4 as water availability determinations for that area are subject to additional requirements due to Swinomish Indian Tribal Community v. Department of Ecology, 178 Wn.2d 571. Watersheds within Yakima River Basin (Lower Yakima, Naches, and Upper Yakima) are not included in Groups 1-4 as water availability determinations for that area may be subject to additional requirements to satisfy adjudicated right upon the conclusion of the current surface water adjudication. (Sec. 101, 1(e)-(f)).
Pilot Projects
The new chapter added to the RCWs by the Bill, under Title 90, includes a section outlining two pilot projects in the Dungeness watershed and Kittitas Valley portion of the Upper Yakima watershed to determine the feasibility of measuring water use from new permit-exempt groundwater withdrawals. Ecology will purchase and provide the meters. (Sec. 204).
Water Resource Mitigation Task Force
The new chapter added to the RCWs by the Bill, under Title 90, also includes a section outlining the establishment of a joint legislative task force to further investigate different types of mitigation. This is meant to address the Foster v. Ecology, City of Yelm and Washington Pollution Hearings Board Supreme Court Decision, which overturned issuance of a permit for the City of Yelm. One of the reasons the Court overturned issuance of the permit is because the approval relied on both water for water mitigation (in-kind) and mitigation through habitat protection (out-of-kind). The Court found that ecological benefit cannot mitigate the injury to a senior water right holder when a junior water right holder impairs their senior water right. The task force will evaluate out-of-kind mitigation options through a sequencing and scoring system that it will develop. To assist the task force in development of the sequencing and scoring system, Ecology will issue up to five permits to specifically qualified water right applicants to serve as mitigation pilot projects. The permits will be conditioned with in-kind and out-of-kind mitigation requirements. (Sec. 301).
To allow Ecology to issue permits for the mitigation pilot project applications, the Bill amends RCW 90.03.247, “Minimum flows and levels—Department authority exclusive—Other recommendations considered,” which requires permits issued for streams or areas subject to minimum flow/level rules to be conditioned to protect the set minimum flows or levels, to accommodate permits issued with required resource mitigation in accordance with Sec. 301. (Sec. 302, 1(b)). The Bill also amends RCW 90.03.290, “Appropriation procedure—Department to investigate—Preliminary permit—Findings and action on application,” to allow the mitigation pilot project applications to be permitted without findings from Ecology that water is available for the use and will not impair existing water rights or be detrimental to the public interest. (Sec. 303, 5).
In summary, the Bill allows building projects and developments relying on already constructed permit-exempt wells to move forward. The Bill also allows projects in areas of the state not subject to instream flow rules relying on new permit-exempt wells to move forward. The Bill allows projects in areas of the state subject to instream rules that already address handling of permit-exempt uses to move forward. Additionally, the Bill provides a framework to allow permit exempt uses and projects relying on those uses in areas of the state subject to instream flow rules to continue to move forward in varying capacities while the process for further rule-making is undertaken to address impacts of permit exempt uses to those areas. The Bill represents more than a year of negotiations between Democrats and Republicans. It is meant to provide a more logical solution than the well by well analysis required by Hirst.
For more takes on the Bill take a look at the following links.
https://ecology.wa.gov/Water-Shorelines/Water-supply/Water-rights/Case-law/Hirst-decision
http://www.capitalpress.com/Water/20180122/washington-farm-bureau-lauds-hirst-fix
As always, stay tuned to Schroeder Law Offices’ blog for more updates on water related legislation!
