LEGAL AND PRACTICAL ISSUES IN MITIGATION

1. LEGAL AND PRACTICAL ISSUES IN MITIGATION “WHAT WORKS AND WHAT DOESN’T” Tom Pors, Law Office of Thomas M. Pors Joe Becker, Robinson, Noble & Saltbush, Inc.

2. KEY STATUTES AND RULES • RCW 90.03.290(2) the four-part test • Use is Beneficial • Water is available (legal and physical) • No impairment of senior rights • Not detrimental to public welfare

3. KEY STATUTES AND RULES • RCW 90.44.030 groundwater appropriations cannot affect or impair senior surface water rights (including instream flows set by rule)

4. KEY STATUTES AND RULES RCW 90.54.020(3) "The quality of the natural environment shall be protected and, where possible, enhanced as follows: . . . Perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values."

5. KEY STATUTES AND RULES • RCW 90.03.345 The establishment of minimum flows or levels under RCW 90.22.010 or 90.54.040 shall constitute appropriations within the meaning of this chapter with priority dates as of the effective dates of their establishment. A minimum flow set by rule is an existing right which may not be impaired by subsequent groundwater withdrawals. (Postema v. PCHB)

6. KEY STATUTES AND RULES • RCW 90.44.055 The department shall, when evaluating an application for a water right or an amendment filed pursuant to RCW 90.44.050 or 90.44.100 that includes provision for any water impoundment or other resource management technique, take into consideration the benefits and costs, including environmental effects, of any water impoundment or other resource management technique that is included as a component of the application. The department’s consideration shall extend to any increased water supply that results from the impoundment or other resource management technique, including but not limited to any recharge of ground water that may occur, as a means of making water available or otherwise offsetting the impact of the withdrawal of ground water proposed in the application for the water right or amendment in the same water resource inventory area.

7. KEY STATUTES AND RULES • WAC 173-513-050 “Future ground water withdrawal proposals will not be affected by this chapter unless it is verified that such withdrawal would clearly have an adverse impact upon the surface water system contrary to the intent and objectives of this chapter.”

8. PRINCIPAL CASES Photos courtesy of Waikay Lau and Joe Goldberg

9. Postema v. PCHB • A minimum flow set by rule is an existing right which may not be impaired by subsequent ground water withdrawals. 142 Wn. 2d at 81. • RCW 90.03.290 does not differentiate between impairment of existing rights based on whether the impairment is de minimus or significant. If withdrawal would impair existing rights, the statute provides the application must be denied. 142 Wn. 2d at 90. • Ecology may use new methods [e.g., ground water modeling] to determine impairment as they are developed. 142 Wn. 2d at 91.

10. Postema v. PCHB • Hydraulic continuity of an aquifer with a stream having unmet minimum flows is not, in and of itself, a basis for denial of a groundwater application – an individual finding of impairment is required based on the facts of the case. 142 Wn. 2d at 93. • Stream closures by rule embody Ecology’s determination that water is not available for further appropriations. A proposed withdrawal of groundwater from a closed stream or lake in hydraulic continuity must be denied if it is established factually that the withdrawal will have any effect on the flow or level of the surface water. 142 Wn. 2d at 95.

11. Squaxin Island Tribe v. Ecology (Miller Land & Timber Co.) • Ecology can grant a ground water application based on a mitigation of impacts to surface water • Ecology has authority and discretion to approve a mitigation plan; the adoption of rules to implement RCW 90.44.055 is not required. • The Board reconciled the basin rule (“clear adverse impact upon the surface water system”) with Postema (“any effect on the flow or level of the surface water”) as follows: “any effects which adversely impact the values identified in WAC 173-513-020”

12. Squaxin Island Tribe v. Ecology • Thus, evidence of an adverse impact is required to deny a mitigated ground water withdrawal, not just evidence of hydraulic continuity with a closed stream or lake and “any effect” on flows. • A reduction in stream flow does not necessarily equate to harm “If a reduction in stream flow occurs only during the winter months when there is ample flow in a particular stream, for example, it is difficult to see how the water is not “available” for appropriation or how it is adversely impacting the base flows “necessary to provide protection for wildlife, fish, scenic, aesthetic, environmental values, recreation, navigation, and water quality” as required by WAC 173-513-020.“ Final Order, October 16, 2006.

13. Squaxin Island Tribe v. Ecology • The Board vacated and remanded the ROEs based on defects in the mitigation plan and hydrogeology model • Appellant’s ground water model more reliable than the USGS model relied on by the applicant and Ecology. • Mitigation plan failed to account for the effects on streamflow of the mitigation source • Baseline conditions of the affected creek need to be assessed • Pumping tests required on all wells under a preliminary permit • Monitoring of stream levels is a necessary condition • Financial assurances are required to insure performance by the applicant of mitigation conditions.

14. Manke Lumber v. Ecology, PCHB Nos. 96-102 through 96-106 (1996) Decided prior to adoption of RCW 90.44.055 Relied heavily on Colorado precedent Aquifer recharge resulting from vegetation removal cannot be considered the basis for mitigating or offsetting a water right The water used by trees or precipitation intercepted by them is part of the resource that belongs to the people Granting a water right based on cutting of trees would violate the principle of first in time, first in right

15. CPM Development Corp. v. Ecology, PCHB No. 03-071 (2007) Under RCW 90.44.050, must Ecology consider aquifer recharge from managed stormwater ponds, including additional water from removal of vegetation, for duration of mining? “Vegetation removal does not fall within the plain language of the reference in RCW 90.44.055 to “other resource management techniques. “As a result, Ecology is not required to give detailed consideration of a plan put forward by an applicant if Ecology concludes that it fails, as a threshold matter, to qualify as a resource management technique.”

16. What Works and What Doesn’t “Mitigation Measures Used in Water Rights Permitting,” (Dept. Of Ecology, April 2003) Rule of Thumb Defining Impacted Area – aquifer testing and modeling Timing and Scope of Impact Identifying Mitigation Sources and Procedures Consultation with Tribes Monitoring and Reporting Recent Examples

17. “Road” to Mitigation • Determine if mitigation required • Conceptually define area, magnitude, timing of impact • Evaluate mitigation based on conceptual understanding – is better definition needed? • If necessary, develop quantitative definition of impact • Consider mitigation options • Develop plan and negotiate with Ecology

18. Is Mitigation Required Closed Stream? Consumptive Use? Othersin Area Mitigate?

19. Conceptually Determine Impact

20. Is Better Definition Needed?

21. Quantitative Definition = Test and Model Photo courtesy of Rick Abbott Photo courtesy of Lamerie

22. Analytical

23. Analytic-Element

24. Numerical (MODFLOW)

25. Stream Depletion/Demand Forecasting Graphic courtesy of Tom Pors

26. After the Model, What Next? Answers or Estimates How much Where When Identify possible mitigation options

27. Options – What Works Stream Augmentation

28. Options – What Works X Transfer/Retirement of Senior Rights

29. Options – What Works X Moving Production to a Deeper Aquifer

30. X Stream Augmentation from existing system Options – What Works + + Stop uncontrolled artesian flow = Mitigation Plan for City of Port Orchard, Wells 4 and 10, and McCormick Wells 4B and 5 Combinations of Methods

31. X X X Stream Augmentation from existing system Water Right Transfer Resting Water Right Water Right Relinquishment Options – What Works + + + = Mitigation Plan for Lakewood Water District, Abitibi Water Right Transfer Combinations of Methods

32. X X X Water Right to Trust Water Right Transfer Water Right Transfer Habitat Enhancement Options – What Works $ + + + $ + + = Mitigation Plan for Trendwest Resorts, Water Right Change Requests Combinations of Methods

33. Options – What Doesn’t Several potential options have not successfully been implemented as stand-alone mitigations, these include: • credit for habitat enhancement • credit for water management techniques inherent to the project • credit for reclaimed water use

34. X X Develop the Plan • Pick from options available to develop plan • Offer/negotiate plan with Ecology and other stakeholders X Stop uncontrolled artesian flow $ Box of Mitigation Options

35. Consulting with the Tribes Case Study: North Bend Tribes concerns included: • definition of impact • selection of mitigation trigger • timing of required mitigation • sources of mitigation water

36. Questions? Graphics and photographs not individually credited are courtesy of Seldom Seen Photography and/or Robinson, Noble & Saltbush.