Anne Shaffer is the Executive Director & Lead Scientist of the Coastal Watershed Institute. I…
by CELP Executive Director Trish Rolfe and Government Affairs Specialist Bruce Wishart
Water is a major topic in the legislature again this year, and several bills have been introduced that would undermine or overturn several key Washington Supreme Court water law decisions, including the Hirst decision on permit exempt wells handed down in October. CELP has been busy testifying on these bills in Olympia to ensure protection of Washington’s water resources.
Senate Bills that CELP Opposes: These bills would negatively impact instream flows and salmon.
- SB 5010: Avoiding Ecology Review of Expansion of Agricultural Water Rights as a Result of Claimed Conservation
While we support and encourage water conservation, this bill would bypass a process in existing law to ensure that when a farmer conducts conservation then sells or transfers the water, the water is legally available for the new use. Farmers who wish to do conservation can use the established “Trust Water Rights Program” in current law to avoid relinquishment of the water saved by conservation practices
- SB 5005: Converting an Agricultural Right to a Municipal Right without Ecology Review
Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would avoid that review, allowing relinquished rights to be revived. House companion bill is HB 2084.
- SB 5003: Allowing New Projects to Mine Instream Flows
This bill overturns several recent State Supreme Court decisions on water law, allowing approval of new projects that reduces instream flows necessary to protect endangered salmon. Ecology could use different tools to impair instream flows to support new land use development and other new out of stream projects. This would result in giving a super priority to permit-exempt wells, harming senior water rights holders and instream flows.
- SSB 5002: Requiring Leased Water Rights used as Mitigation to be Replaced by Permanent Water
This bill allows temporary, leased water to be used to mitigate ongoing use of domestic wells.
- SB 5239: Overturning Hirst and Allowing Wells to Harm Instream Flows
Overturns Hirst and allows unmitigated development to harm existing users of water, including instream flows. Completely undermines instream flows, making them subordinate to new wells.
Senate Bill CELP supports with concerns
- SB 5024: Allows Development to Proceed under Hirst under Mitigation Plans
Allows for new development to occur in rural areas without adequate water supply provided the County adopts a mitigation plan. A county is given five years to allow new development before mitigation must be in place. Follows models used successfully in Clallam and Kittitas Counties which allow salmon-friendly development.
House Bills that CELP Opposes. These bills would negatively impact instream flows and salmon.
- 1084 Converting an Agricultural Right to a Municipal Right without Ecology Review
Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would bypass that review, allowing relinquished rights to be revived. Senate Companion bill 5005
- 1348 Concerning the priority in the state water code assigned to various beneficial uses.
Establishes that regardless of priority date, instream flows rules are always junior to the beneficial use of water for irrigation, commercial, industrial, or potable water purposes. Changes water law, and makes Instream flow water rights a lesser water right. Would destroy meaningful protections for instream flows and harm fish and other wildlife.
- 1349 Declaring any minimal cumulative impacts of permit-exempt groundwater wells on water levels to be overwhelmingly offset by state investments in fish habitat improvement projects.
Establishes that permit-exempt groundwater withdrawals are deemed to not impair senior water rights, presumably including instream flow rules, and that the cumulative impact from permit-exempt wells on instream flows are to be “forever fully mitigated.”
Allows for out of kind mitigation for impairment of Instream flows. Makes Instream flow water rights a lesser water right. Will harm fish and wildlife because other habitat improvements are meaningless if there isn’t enough water in the streams for fish. A water right is a right in perpetuity, but habitat improvements are not permanent.
- 1382 Establishing a rebuttable presumption that permit-exempt groundwater withdrawals do not impair instream flows or base flows. Establishes that permit-exempt groundwater withdrawals are presumed to not affect or impair instream flows unless “conclusive evidence” is provided proving otherwise.
This would result in giving a super priority to permit-exempt wells, harming both senior water right holders and instream flows.
- 1394 Regarding the processing of applications for Columbia river water right permits to clarify legislative intent to ensure that the rules can be implemented as written.
This bill would allow out of kind mitigation for impairment of Instream flows on the Columbia River System. It would harm instream flows and the fish and wildlife that depend on adequate water in the river. This is a companion to SB 5269.
- 1459 Considering the full hydrologic cycle in the review and approval process of new water uses. Changes the groundwater code and GMA such that Ecology and counties have to look at the “full hydrologic cycle” when assessing the impact of new groundwater withdrawals. This would result in impairment of streamflow, because removal of trees does not guaranty that groundwater is recharged or that streamflow is improved.
- 1460 Redesigning the transfer of water rights, including the statutory process of relinquishment. Changes the relinquishment statutes, requiring that Ecology provide conclusive evidence to prove water relinquishment. Establishes that water rights relinquished go into a special trust that be made available for irrigation, municipal, and other beneficial uses. This undermines water law by removing the “use it or lose it” provision designed to make sure water is put to a beneficial use. Shifting the burden to Ecology to prove that the water hasn’t been beneficially used, which is almost impossible to do.
- 1748 Modifying provisions within the growth management act to improve affordable housing opportunities in rural communities; Rolls back the Hirst Would allow permit-exempt wells to impair senior water rights.
House bill that CELP supports:
- 1172 Encouraging low-water landscaping practices as a drought alleviation tool.
House bill that CELP supports with concerns:
- 1760 Relating to off-site mitigation for projects