SB 6091: Who Won?

SB 6091: Who Won?

Don Schwerin

Senate Bill 6091, “Ensuring that Water is Available to Support Development”, passed the Senate and the House on 18 January. In the Senate, Warnick, Schoesler, and Erickson voted for SB 6091; McCoy, Dhingra, and Wellman voted nay.

So quickly resolved was last June’s stand-off on the capital budget created by the Republican-created crisis over permit-exempt wells, the so-called Hirst issue.

So, did Democrats fold over Hirst in order to get a capital budget passed? Or did Republicans cut their losses and accept a few face-saving clauses to vote yea? Maybe it was an old-fashioned compromise. More importantly, did water win?

Earlier this month, the Ag and Rural Caucus established four goals for a Hirst solution:

ARC supports determination of water availability to take into account the cumulative effect of permit-exempt wells.
ARC advocates purchase and resale of trust water rights to mitigate groundwater withdrawals.
ARC supports development of new rules to govern out-of-kind mitigation.
ARC calls for a re-specification of DOE’s primary role in managing the state’s water resources.

Cumulative Effect: The Republicans ridiculed the idea that a single household’s water withdrawal could affect stream flows. The Supreme Court found, however, a “proliferation of rural, permit-wells” plausibly violated the in-stream water rights of the Nooksack River basin in Whatcom County. SB 6091 accepts the Hirst finding that the cumulative effect of permit-exempt wells must be evaluated. In contrast, the Republicans in SB 5239 last June explicitly provided that “the department may not require…mitigation of impacts that are not caused by the applicant’s water diversion or withdrawal.” This language excluded recognition of cumulative effects.

SB 6091 satisfies our support for evaluation of cumulative effects.

Trust water rights: ARC strongly endorses county programs to purchase and re-sell water rights to allow new applicants with no net withdrawal of ground water. For example, Spokane County committed $1.2 million to a revolving fund to purchase senior water rights and sell mitigation certificates to open up development in the Deer Park area. This program is ready for business. The County, with Department of Ecology approval, has 700-1,000 certificates to sell for $2,000 to $4,000 each. Expecting forty applications per year, there are sufficient certificates for twenty to twenty-five years.

SB 6091 meets our test: “Watershed plan recommendations may include, but are not limited to, acquiring senior water rights…”

Out-of-kind mitigation: Hirst is only the latest decision to enforce in-stream water rights. The 2015 Foster decision required that mitigations meet the test of “in-kind, in-place, in time”. Foster is exceedingly exacting. Good plans, maybe even the best possible plans, fail to meet its tests.

SB 6091 says the plans meeting the Foster tests have the highest priority, but also provides for “lower priority projects”. Further, SB 6091 sets up a joint legislative task force to advise on mitigation rules:

NEW SECTION. Sec. 301. (1) A joint legislative task force on water resource mitigation is established to review the treatment of surface water and groundwater appropriations as they relate to in stream flows and fish habitat, to develop and recommend mitigation sequencing process and scoring system to address such appropriations, and to review the Washington supreme court decision in Foster v. Department of Ecology, 184 Wn.2d 465, 362 P.3d 9593 (2015)

SB 6091 satisfies our test for addressing mitigation.

DOE is primary: Hirst found wanting both Whatcom County and the Department of Ecology. Each had failed public stewardship of the Nooksack River. SB 6091 clearly establishes DOE to be responsible for preparing and adopting watershed plans.

SB 6091 satisfies our fourth test.

So what is there not to like about SB 6091?

SB 6091 creates six different treatments based on Water Resource Inventory Area (WRIA, “wry-a”). There are sixty-two WRIA’s corresponding to water basins in the State of Washington.

For fifteen of the WRIA’s SB 6091 proposes no changes. Ten have functioning plans: “in stream flow rules adopted by the department of ecology under chapters 90.22 and 90.54 RCW that explicitly regulate permit-exempt groundwater withdrawals…” Examples are the Middle Spokane, Methow, Walla Walla, and the Stillaquamish. Three are in the Yakima Valley where “the department of ecology may impose requirements to satisfy adjudicated water rights.” And two are in the Skagit River where “additional requirements” apply because of the Swinomish Indian Tribal Community v. Department of Ecology case.

Treatment class WRIA count
No change – explicit regulation 10
Adjudicated 3
Skagit – Swinomish v. DOE 2
Section 202 – in process – relaxed Foster rules 7
Section 203 – Watershed Restoration and Enhancement Committees 8
water well report sufficient 32

Fifteen WRIA’s fall into either Section 202 or 203. Although the language in SB 6091 is precisely the same, WRIA’s with previously adopted watershed plans come under 202; WRIA’s without previously adopted watershed plans fall under 203. All 203 WRIA’s border Puget Sound.

SB 6091 is relatively relaxed with regard to the 202 WRIA’s. These 202 plans need updating and there are deadlines, but the Puget Sound 203 WRIA’s must proceed under detailed rules for Watershed Restoration and Enhancement Committees. The Committees have specified memberships, procedures, and provisions for referral of disputes to the Salmon  Recovery Funding Board.

For thirty-two WRIA’s, or more than half, “physical and legal evidence of an adequate water supply may be demonstrated by the submission of a water well report…” Examples are Palouse, Cowlitz, and Soleduc.

Republicans got a free hand in more than half the state; rural counties in eastern Washington, southwestern Washington and on the Peninsula are largely unaffected. These counties revert to pre-Hirst rules. Democrats got an elaborate process in the Puget Sound region and assurance of careful planning of local water resources. The Skagit drainage remains a battle ground – SB 6091 is largely silent about WRIA 3 and 4.

What is not to like about SB 6091 is that it falls far short of comprehensive stewardship of our state’s water resources and reverts half of the state to pre-Hirst rules.

SB 6091 Sections 202 and 203 address only “domestic” water use. RCW 90.44.050 creates four classes of permit-exempt uses: 1) stock watering, unlimited, or 2) lawn/garden, limited by up to one-half acre, or 3) domestic use, limited by quantity, or 4) industrial, limited by quantity.

That any withdrawal of public groundwater for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day,…or for an industrial purpose in an amount not exceeding five thousand gallons a day, is and shall be exempt…

When SB 6091 limits its provisions to “domestic” uses only and plays around with adjusting allowable use to 3,000 gallons per day for 202 WRIAs and 950 gallons per day for 203 WRIAs, it is missing the point entirely. Domestic uses is the least important of the four classes. The municipal standard, for example, is 350 gallons per day. Brushing our teeth and washing our socks are not issues.

The authors of SB 6091 hinted that lawn and garden watering would be permitted in 202 and 203 WRIA’s as domestic use. This reading, however, does not appear in the statute. This confusion will be a  source of conflict.

What is not to like about SB 6091 is that unlimited withdrawal for stock watering is not addressed, and that it leaves uncertain whether limited – but unmeasured – withdrawals for lawn and garden are permitted.

SB 6091 is unfinished work. Most of the state’s water resources are not addressed and will not be addressed until the next crisis. There will be protracted disputes about the Skagit. The loophole of stock watering remains wide open. And the statute will be challenged to clarify lawn and garden watering, with a replay of the Republican talking points.

Even with its shortcomings, it is possible to see SB 6091 as a model of adapting natural resource policy making to local conditions. Its provisions adjust to varying urgencies depending on location while moving state policy overall marginally ahead. It defuses conflict by not pushing elaborate planning onto drainages where delay works, for now. We grit our teeth because we are talking about water, and this approach seems to walk away from responsible, long-term water management. We would be more comfortable talking about localizing policy if it were forest management, for example. We grit our teeth, too, because we suspect that the local conditions demanding accommodation may be partisan in nature. Still, SB 6091 lets us continue the process. It is permissive to building the political strength – and wisdom – sufficient to more aggressively manage our water.