This past October, Mike Krautkramer posted about a State Supreme Court ruling impacting water rights in Washington State (State Supreme Court Rules on Skagit River Case). The case, Swinomish Indian Tribal Community v. Department of Ecology, challenged Ecology’s authority to use the “Overriding Consideration of the Public Interest” (OCPI) clause to set aside water for future allocation after an instream flow has been established, in this case for the Skagit River. Mike noted at the time that this decision would likely further complicate surface-water/groundwater management and the water rights process.
If you’ve been following this decision, you may be interested in a new article posted by noted Washington water rights attorney Tom Pors, entitled: How Messed Up is Washington’s Water Allocation System After Swinomish Indian Tribal Community v. Ecology? How False Assumptions and Failure to Balance Water Priorities Led to a Surprise Closure of the State’s Groundwater, Over-reliance on OCPI and the Need for Legislative Reform.
On October 3, 2013 the Washington State Supreme Court handed down its long-awaited decision on the Swinomish Indian Tribal Community v. Department of Ecology case (No. 87672-0). This case challenged the authority of Ecology to use the “Overriding Consideration of the Public Interest” (OCPI) clause to set aside water (for future allocation) after an instream flow has been established for a given stream or river. At issue was the use of that clause to amend the Skagit Basin Instream Flow Rule (WAC 173-503) to add reservations of water to the rule in order to facilitate some rural growth within specified sub basins. The court ruled that Ecology erred in several ways in its application of OCPI and clarified that reduction of an established instream flow could only be justified in “extraordinary” circumstances. Continue reading
Come by and see us this week at the Washington Association of Sewer & Water Districts (WASWD) Fall Conference this week (September 25 through 27) in Pasco, Washington. On Thursday afternoon, Burt Clothier will be co-presenting a talk with DOE about water right processing, including the new Certified Water Rights Examiner (CWRE) program.
From the conference program:
3:45 p.m. – 4:45 p.m.
Ecology Tools to Improve Water Rights Processing
Victoria Leuba, WA State Department of Ecology
Burt Clothier, Robinson Noble
The WA ST DOE has established several programs to enhance the processing of water rights requests. The cost-reimbursement program has been in place for many years and gives water rights applicants the opportunity to hire private consultants from an Ecology-approved list to perform the majority of the processing before Ecology renders a decision. This can greatly shorten the time necessary to complete an application or change request. At the other end of the process, Ecology has just established a certified water rights examiner (CWRE) program. Here, Ecology registers private groundwater professionals to perform the proof-of-appropriation examination needed by a water rights permit holder wishing to finalize their water right into a full certificate. Both programs will be discussed in a joint presentation by water rights professionals.
South Puget Sound diversion dam (Photo credit: Burt Clothier)
Back in February, we posted about the Washington State Department of Ecology’s upcoming Certified Water Rights Examiner (CWRE) program. Designed to help water rights holders streamline the process of moving a water right permit to certificate status, the program is now active. Following the initial round of examinations in late May and early June, Ecology has published a list of certified examiners here.
Robinson Noble has two CWREs on staff: Burt Clothier, LHG, in our Tacoma office and Max Wills, LHG, in our Woodinville office. Our services now support water users through all phases of the water rights process from application, source development, and mitigation analysis through permit approval and proof of appropriation certification by a CWRE.
Former ASARCO Smelter site.
When ASARCO’s historic Tacoma Smelter closed in 1986, it left behind arsenic and lead pollution spread across more than 1,000 square miles of south Puget Sound. Numerous studies have since been accomplished to evaluate the so-called Commencement Bay Superfund site, and in 2009, the Washington State Department of Ecology (Ecology) received a $94M bankruptcy settlement from ASARCO for cleanup activities. Ecology has now finalized its Final Interim Action Plan, which lays out what Ecology will do to manage risk and clean up some areas of the Tacoma Smelter Plume. The plan includes several options, including excavation and offsite disposal of contaminated material, onsite blending with clean soil materials, and in-place capping and containment.
Management and cleanup of this contamination is challenging for many reasons, not the least of which is the fact that the plume impacts reach far beyond the boundaries of the former smelter property. Ecology, in recognizing the challenge of cleaning up widespread contamination across thousands of properties, has chosen a multi-pronged suite of solutions. Settlement funds will be used to cleanup parks, schools, and childcare facility play areas, along with a variety of development-oriented options for properties undergoing redevelopment.
The model remedies provide proscribed methods for assessment and cleanup that can easily be incorporated by cities and counties into their permit processes. Property owners have the option of performing independent assessment and remediation or participating in Ecology’s Voluntary Cleanup Program. Unlike other types of sites, smelter plume sites can participate in this program free-of-charge.
The Washington State Supreme Court issued a ruling in March that is believed to represent the last “brick” in the very lengthy water right adjudication process started in 1977. The ruling addresses several thorny issues in the Ahtanum Creek Sub-basin west of the City of Yakima. This sub-basin has the most complex legal history in the entire Yakima Basin and was left until last for that reason.
The significance of the ruling is not so much in its findings as in the fact that this ruling essentially clears the way for the longest-term and most expensive adjudication in State history to be completed. The results can then be used as a basis for water resource management in the Yakima Basin. This is likely to facilitate implementation of several projects intended to enhance the seasonal availability of water throughout the basin and could lead to economically and environmentally advantageous active management efforts.
Ecology’s Water Right General Adjudications webpage provides a good summary of the process, and includes a link to a Yakima Herald newspaper article about the ruling for those who are not inclined to read Supreme Court rulings in their entirety. For those with judicio-masochistic tendencies, the full text of the ruling can be accessed here.
Central WA surface water diversion gate (Photo credit: Mike Brady)
As directed by the Washington State legislature, the Department of Ecology has established a new program to speed the processing of water rights by certifying qualified professionals as Certified Water Rights Examiners (CWRE). Under this program, a CWRE will accomplish the final site inspection and review required to move a water right permit to certificate status, a function previously completed by Ecology staff.
Ecology finalized its rule making process in November 2011, creating Chapter 173-165 WAC, as authorized by the new law RCW 90.03.655. The program is expected to begin in 2013 after the first round of CWRE examinations have been completed (likely in the spring). Ecology’s news release provides an overview of the program and additional information is available on Ecology’s website.
In short, the program will work like this: When a water right application is approved, Ecology issues a permit with a timeline for the user to put the full appropriation to use. Once the user determines that their use fully meets the limits of the permit, they apply to Ecology to move the permit to certificate status by submitting a Proof of Appropriation form. This proof request must be confirmed through a field visit and examination before the certificate can be issued. The permit holder will hire a CWRE, have them complete the final examination process, and submit their findings to Ecology. Ecology will then issue the certificate based on those findings.
From our perspective as one of Ecology’s approved cost-reimbursement contractors, we view the CWRE program as a useful expansion of the cooperation between Ecology and the private sector. Robinson Noble will have CWREs on staff and will offer these services as soon as Ecology’s examination process is completed. Our services will then support water users from start to finish in a water rights process, from application, through permit approval, and ending with proof of appropriation certification by a CWRE.
Overview of the Process.
The dredging and cleanup of contaminated sediments in Northwestern waterways is important to the Northwest’s economy and in maintaining environmental integrity. In 1995, based in large measure on data developed for the dredging programs, Ecology developed the Sediment Management Standards (SMS; WAC 173-204) Rule to protect human health and the environment from potential impacts of contaminated sediments. The Rule was originally promulgated based on extensive research and regulatory guidance available for marine/estuarine sediments, but the body of knowledge for freshwater sediments has subsequently been developed as well and is being incorporated into the Rule, as originally intended. Continue reading