Congratulations to CELP staffer Rob Caldwell, who recently graduated from the Northwestern School of Law at Lewis & Clark College. In addition, Rob's research paper entitled "The Cumulative Effects of Washington's Domestic Well Exemption" won a cash award in a competition sponsored by the Northwest Water Law and Policy Project, which will publish the paper and distribute copies to all legislators in the four Columbia Basin states. Copies may also be obtained from CELP.

CELP Board member

Julia Parrish, Professor of Zoology at the University of Washington, has been named a NOAA Year of the Oceans Environmental Hero for her research involving seabird mortality as it relates to oil spills. Congratulations, Julia!

Washington Water Trust Makes a Splash

With the adoption of its non-profit articles and bylaws and the convening of its first board meeting, the Washington Water Trust is now on its own. The Trust was formed to restore instream flows in Washington's rivers and streams. State statute enables the Trust to use market-based approaches to protect and improve water quality by enabling transfers from willing water right sellers or donors.

Funded with a seed grant from the Northwest Area Foundation, the Trust is conducting a national search for its first executive director. Board members include Wick Dufford, Richard Kelley, Patricia Olson, Rachael Paschal, Katherine Ransel, John Sayre and Norm Whittlesey.

New Water Laws and Rules in Washington State

The 1998 Washington Legislature got creative in mapping out solutions to the state's water policy woes. Because the governor fully or partially vetoed the majority of water bills proposed in 1997, lawmakers in the 1998 session worked hard for bipartisan buy-off. For example, a 1997 watershed planning bill (House Bill 2054) was largely rejected by the governor. Because of the distance between the legislature and executive on water policy, all parties agreed to an interim process laying groundwork for 1998 and beyond. So far, the process has produced mixed results.

First, a negotiating group known as the "Five Corners" was drawn up. The group was composed of the chairs and ranking minority members of the House and Senate committees on agriculture and the environment (where water bills originate), along with the executive branch participant, the director of the Department of Ecology, the state water resources agency.

The Five Corners group focused on policy consensus for three primary issues: municipal water rights, hydraulic continuity standards, and watershed planning. Municipal rights questions were delegated to a facilitated "stakeholder" work group which negotiated intensively in December and January, but failed to achieve consensus for the 1998 session. Issues on the table included the validity and transferability of unperfected municipal water rights, expanded use of interties, and the definition of municipal use. The municipal work group will reconvene this summer to attempt consensus legislation for 1999.

Hydraulic continuity refers to the physical connection between ground and surface waters. At present, state law requires full recognition of these connections, a standard that has closed many aquifers to new water rights. A 1997 bill (House Bill 2050) weakening this standard was vetoed. The Five Corners group asked the Department of Ecology to convene a technical committee to advise the state whether the existing standards can be safely altered without detriment to senior water rights or instream flows.

Composed of eleven eminent hydrogeologists, the technical group has been asked to develop "appropriate methods for assessing and quantifying the capture of surface water by wells as they withdraw ground water." They will advise the agency about technical methods for evaluating the location, quantity and timing of capture effects. Dubbed the "capture committee," they will meet four times and produce a report later this year.

Finally, the Five Corners group negotiated language for a new watershed planning bill. House Bill 2514, in much-amended form, was signed by the governor in March, providing content to RCW Chapter 90.82. The new statute authorizes watershed "planning units," composed of representatives from local, state, and (at their option) tribal governments, along with the usual cast of stakeholders and interest groups. Planning units are charged with creating water availability studies and, potentially, instream flow, water quality and habitat plans. Mechanisms for use of this information remain unclear.

WASHINGTON STATE DEPARTMENT OF ECOLOGY

On the administrative front, Ecology recently adopted two new water resource rules. The first, addressing water allocation in the Columbia River, responded to the 1997 legislative suspension of an administrative moratorium on new water rights from the Columbia. Against a backlog of more than 110 applications, universal condemnation of existing instream flows, and recent Endangered Species Act listings for Columbia basin salmon, the lifting of the moratorium stirred concern over the state's ability to protect the river's resources. Under the new rule, Ecology will continue to hold applications pending case-by-case consultation with federal, tribal and state resource agencies regarding instream flow protection and potential "mitigation."

Ecology adopted a second rule in response to the state Supreme Court's decision in Hillis v. Dep't of Ecology, 131 Wn.2d 373 (1997). In that decision, the Court ruled that Ecology's practice of processing water right applications according to geographic and other priorities violated state water code requirements. The tenor of the decision indicated that such prioritization might be acceptable if Ecology acted pursuant to the state Administrative Procedures Act, RCW Chapter 34.05.

In response, Ecology adopted the "Hillis" rule, which establishes standards to allow Ecology to allocate its workload by geographic region, for conducting water availability studies (also called basin assessments), and to prioritize processing of competing applications of various types. In particular, applications may be processed out of order for public health and safety emergencies, transfer of existing rights, and non-consumptive uses which protect the quality of the natural environment.

ECOLOGY CONFUSED BY FEDERAL ESA LISTING

Ecology this spring issued ground water rights to Clark County Public Utilities District in the Salmon Creek watershed. The rights, totaling 3,020 gallons per minute, are conditioned on an unenforceable agreement between the agency and the utility. When flows fall below 12 cfs, meetings will be held. At the same time, Ecology denied water rights to other users in the basin, citing Fish & Wildlife's recommendation to keep at least 63 cfs in Salmon Creek for endangered fish. Disappointed water users include Battle Ground School District's experimental farm.

Meanwhile, in March, the governor's Salmon Team issued a draft recovery plan for endangered Lower Columbia steelhead. That plan directs Ecology to "close basins in situations where streams are fully appropriated" and "hold water right applications until additional information is acquired and instream flows are set." Perhaps meetings should be held between the governor's office and Ecology, and perhaps very soon.

Jan Naragon
Center for Environmental Law & Policy
1165 Eastlake Ave. E., #400
Seattle, WA 98109
phone 223-8454, fax 223-8464
celp@wolfenet.com