Friday, October 4, 2013

Superheroes on the Washington Supreme Court

The Washington State Supreme Court issued a decisive 6-3 decision in a Skagit County water rights case yesterday.  The Court upheld the Swinomish Tribe’s challenge of a rule negotiated between the Department of Ecology and Skagit County.  You can read the decision here.

The Supreme Court rejected Ecology's view that new development could take water away from the water left in streams for fish, wildlife, and recreation based on "overriding considerations of the public interest."  Of particular interest to Whatcom County, the Supreme Court rejected the idea that rural wells are different from any other water use because they take just a little bit of water. And it cited the Growth Management Act to support its view.
Whatcom County just lost a lawsuit based on its failure to protect water quality and availability under the Growth Management Act.  It will be interesting to see if any of this makes a dent north of the Skagit County line.

One prediction is pretty safe, and that is that the local Tea Party will be hopping mad that “United Nations Agenda 21” has taken over the State of Washington.  Because facts never get in the way of this claim, it will not matter that Washington's instream flow laws were passed decades before the U.S. signed Agenda 21. Under the rule of socialist U.N. lackey George H.W. Bush.

I do hope that the "anonymous" local Tea Party blog, the Whatcom Excavator, is mad enough at the Supreme Court to do one of its cartoons where it dresses people in superhero costumes, as it did for the four Whatcom Wins County Council candidates:

Starting at the top, clockwise:  Barry Buchanan, Rud Browne, Carl Weimer, Ken Mann
The Supreme Court would look nice in tights, I think.

Anyway -- for the water wonks among us, here's a summary.

Ecology had adopted a rule that allowed year-round out-of-stream uses for “domestic, municipal, commercial/industrial, agricultural irrigation, and stock watering,” even when the new uses of water would not leave enough water in streams to protect in-stream flows necessary for “fish, wildlife, recreation, navigation, scenic and aesthetic values.”

Ecology found that the amount of water that would be taken out of streams was “less than an amount that would have significant impacts on fish populations in the river system” and found that the water withdrawals would meet “overriding considerations of the public interest.”

As the court summarized Ecology’s analysis,

On the benefits side Ecology placed the gained economic productivity in the river basin that Ecology determined would ensue from the water reservations over a 20-year period. Also on the benefits side, Ecology says that sources of water other than new withdrawals are as a practical matter unavailable and that without the reservations, new withdrawals for a number of beneficial water uses--stock watering, domestic, municipal, industrial, and agricultural uses--would be subject to interruption in times of low flow. Ecology found that impact on aquatic resources and recreational uses would be very small, and there would not be significant  harm to fish and wildlife, with only a "small loss" to fisheries over 20 years. Ecology determined the significant benefits clearly overrode the potential harm.

The court didn’t just say no, it said hell no.  In what might be called “a severe butt-kicking” in legal terms, the court found:

[A] minimum flow set by rule is an existing water right that may not be impaired by subsequent withdrawal or diversion of water from a river or stream. The exception in [state law that Ecology relied on, RCW 90.54.020(3)(a)] is a narrow exception, not a device for wide-ranging reweighing or reallocation of water through water reservations for numerous future beneficial uses.

Later in the case, the Court gave Ecology a little schooling on the purpose of instream flows:  The Court’s discussion might be a helpful history lesson for all of us:

Although there were no "minimum flows or levels" or "base levels" to begin with, as time passed and the state's population increased demands on water resources also increased. While appropriative beneficial uses of water frequently remove water from the stream or lake, many other uses require that stream flows be maintained, including fish production, recreation, navigation, and power production. Growing, competing demands for water led to a number of new laws over time, and among these are acts and statutes designed to further the goal of retaining sufficient water in streams and lakes to sustain fish and wildlife, provide recreational and navigational opportunities, preserve scenic and aesthetic values, and ensure water quality.

In 1955,* the Legislature declared the policy of the State to be that sufficient water flow be maintained in streams to support fish populations and authorized rejection of water right applications if these flows would be impaired. LAWS OF 1955, ch. 12, § 75.20.050 (codified as amended at RCW 77.57.020).

In 1969,* the legislature enacted the Minimum Water Flows and Levels Act, chapter 90.22 RCW. This is the act that authorized Ecology to establish, by administrative rule, minimum flows or levels to protect instream flows necessary for fish and other wildlife, recreation and aesthetic purposes, and water quality. RCW 90.22.010 provides in part:

The department of ecology may establish minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same. In addition, the department of ecology shall, when requested by the department of fish and wildlife to protect fish, game or other wildlife resources under the jurisdiction of the requesting state agency, or if the department of ecology finds it necessary to preserve water quality, establish such minimum flows or levels as are required to protect the resource or preserve the water quality described in the request or determination.

The court concluded that, under the 1969 act, “a minimum flow or level cannot impair existing water rights and a later application for a water permit cannot be approved if the water right sought would impair the minimum flow or level.”

It’s interesting to note that the Court explicitly rejected the idea that exempt wells should be treated differently from other water users:

The dissent engages in a "factual analysis" intended to show that exempt well uses and rural public water supply systems qualify under a cost-benefit analysis for consideration under the overriding-considerations exception. But the analysis simply shows what is always true--there are hardships attendant to any water right with a later priority date and too little water available to satisfy all rights. The dissent also claims that the reallocations of water for exempt well users and rural public water systems should be permitted since they involve only small quantities of water and will have little impact on minimum flows. But the overriding-considerations exception is not a grant of general authority to reallocate water subject to existing water rights regardless of whether the impact on minimum flows and instream uses would be substantial or slight.

And because saying this once apparently didn’t make its point strongly enough, the Court said it twice:

The dissent says that allowing the reservations for rural public water supply systems and exempt wells is a matter of necessity if rural development and lifestyle is to be possible. In every basin where water is unavailable, the same can be said to be true. The legislature is well aware that water availability is a significant issue. It has enacted numerous laws reaching various aspects of the issue. See, e.g., Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wn.2d 144, 175, 256 P.3d 1193 (2011) (noting that planning for rural growth requires that water quality and availability be protected under the Growth Management Act, chapter 36.70A RCW (citing RCW 36.70A.020(10), .070(1), .070(5)(c)(iv)))

"In every basin where water is unavailable" includes much of Whatcom County. Water availability is a significant issue. What will we do about it?  

Elect some superheroes of our own, I hope.

*Pre-Agenda 21 dates.


  1. Anonymous attacks are not civil discussion. Go to the Excavator with your cowardice.

  2. Gosh, it's as if there were limits to growth/sprawl.

  3. Whatcom County argued that the Kittitas decision only applied to subdivisions and should not be extended to rural areas in their arguments before the Growth Management Hearings Board last April.

    Jean and David argued for a broader interpretation of the Kittitas case that encompassed our rural areas. The Hearings Board agreed and the County lost.

    In June, Whatcom County Council considered appealing the Hearings Board decision and authorizing an additional $90,000 dollars to a Seattle law firm to pursue the appeal.

    Displaying their typical "damn the torpedoes" attitude, Council voted to authorize the money, even though they were advised in open session that the Kittitas decision would not help the County's case.

    Councilmembers trumpeted the usual obligatory and self-serving statements about the insignificance of "politically appointed boards", as well as a clearly erroneous statement about Whatcom County winning all of it's Growth Management challenges in the Courts. So easy for Councilmembers to tilt at windmills when doing so on the taxpayer's dime.

    Only Carl Weimer and Ken Mann had the good sense to reject spending another $90,000 taxpayer dollars to finance the GMHB appeal.

    Executive Louws could have displayed similar good sense and fiscal prudence by vetoing Council's decision. Unfortunately, he didn't.

    In light of this recent case, maybe he will reconsider.

    1. If County rules are the same as the City's, then no veto is possible if a supermajority votes for a given measure.

    2. John,

      If Executive Louws had vetoed I suggest that Pete Kremen would not have voted to override and this foolish expenditure of taxpayer funds would not have been approved.

  4. This is coming at an inconvenient time for the county, with efforts underway to prepare for the 2016 Comp. Plan update. How will all the cities expand their UGA's (legally, and in compliance with GMA)? Why, this could mean that DOE can no longer encourage Bellingham to give additional Nooksack water to Lynden.

    And suddenly, candidate Elenbaas' packinghouse ordinance, allowing a water-intensive industry on AG land, creating increased demand for groundwater needed to grow food, does not look like such a good idea.

  5. When DID the packinghouse ordinance look like a good idea?

    You know, I don't know whether this decision will change anything here in Whatcom County. It depends in part on Ecology's reaction and in part on whether Whatcom County residents remain happy to let the Tea Party run things -- and thereby control our air, water, land, and all of the living things that reside here.

  6. Perhaps those with the ear of our esteemed mayor will suggest Bellingham now, finally, take up where the former mayor left off, and seek a mandate from the court requiring Ecology follow the law and close the Lake Whatcom basin to new withdrawals (or attempts to increase withdrawals on the basis of inchoate rights) while Lake Whatcom and Whatcom Creek are closed due to low instream flows.

    Those of us who've pushed for enforcement of the law these past 6 years can be gratified the Supremes continue to see things our way.

    It's no surprise local plutocrats keep county government in their pocket. But one must marvel at the obtuseness of the mayor, and all her liberal and environmental supporters, who ran Dan Pike out of office for trying to protect the watershed. Oh, that's right, the park took care of everything!

    1. There were multiple, non-obtuse, reasons that explain why Pike was voted out after 1 term!

    2. The question remains, however, why doesn't the mayor continue the effort to prevent further development in the watershed?