LEGAL AND LEGAL AND PRACTICAL ISSUES IN PRACTICAL ISSUES IN

MITIGATIONMITIGATION““WHAT WORKS AND WHAT WORKS AND

WHAT DOESN’T”WHAT DOESN’T”Tom Pors, Law Office of Thomas Tom Pors, Law Office of Thomas

M. PorsM. PorsJoe Becker, Robinson, Noble & Joe Becker, Robinson, Noble &

Saltbush, IncSaltbush, Inc..

KEY STATUTES AND RULESKEY STATUTES AND RULES

RCW 90.03.290(2)RCW 90.03.290(2) the four-part the four-part testtest Use is BeneficialUse is Beneficial Water is available (legal and physical)Water is available (legal and physical) No impairment of senior rightsNo impairment of senior rights Not detrimental to public welfareNot detrimental to public welfare

KEY STATUTES AND RULESKEY STATUTES AND RULES

RCW 90.44.030RCW 90.44.030groundwater appropriations cannot affect or groundwater appropriations cannot affect or impair impair

senior surface water rights (including senior surface water rights (including instream flows set instream flows set

by rule)by rule)

KEY STATUTES AND RULESKEY STATUTES AND RULES

RCW 90.54.020(3)RCW 90.54.020(3)"The quality of the natural "The quality of the natural

environment shall be protected and, environment shall be protected and, where possible, enhanced as follows: where possible, enhanced as follows: . . . Perennial rivers and streams of . . . Perennial rivers and streams of the state shall be retained with base the state shall be retained with base flows necessary to provide for flows necessary to provide for preservation of wildlife, fish, scenic, preservation of wildlife, fish, scenic, aesthetic and other environmental aesthetic and other environmental values, and navigational values."values, and navigational values."

KEY STATUTES AND RULESKEY STATUTES AND RULES

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

KEY STATUTES AND RULESKEY STATUTES AND RULES

RCW 90.44.055RCW 90.44.055The The department shalldepartment shall, when evaluating an application for a , when evaluating an application for a

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

KEY STATUTES AND RULESKEY STATUTES AND RULES

WAC 173-513-050WAC 173-513-050

““Future ground water withdrawal proposals Future ground water withdrawal proposals will not be affected by this chapter unless will not be affected by this chapter unless it is verified that such withdrawal would it is verified that such withdrawal would clearly have an adverse impact upon the clearly have an adverse impact upon the surface water system contrary to the surface water system contrary to the intent and objectives of this chapterintent and objectives of this chapter.”.”

PRINCIPAL CASESPRINCIPAL CASES

Photos courtesy of Waikay Lau and Joe Goldberg

Postema v. PCHB Postema v. PCHB

A minimum flow set by rule is an existing right A minimum flow set by rule is an existing right which may not be impaired by subsequent which may not be impaired by subsequent ground water withdrawals. 142 Wn. 2d at 81. ground water withdrawals. 142 Wn. 2d at 81.

RCW 90.03.290 does not differentiate between RCW 90.03.290 does not differentiate between impairment of existing rights based on impairment of existing rights based on whether the impairment is de minimus or whether the impairment is de minimus or significant. If withdrawal would impair significant. If withdrawal would impair existing rights, the statute provides the existing rights, the statute provides the application must be denied. 142 Wn. 2d at 90.application must be denied. 142 Wn. 2d at 90.

Ecology may use new methods [e.g., ground Ecology may use new methods [e.g., ground water modeling] to determine impairment as water modeling] to determine impairment as they are developed. 142 Wn. 2d at 91.they are developed. 142 Wn. 2d at 91.

Postema v. PCHBPostema v. PCHB Hydraulic continuity of an aquifer with a Hydraulic continuity of an aquifer with a

stream having unmet minimum flows is not, in stream having unmet minimum flows is not, in and of itself, a basis for denial of a and of itself, a basis for denial of a groundwater application – groundwater application – an individual finding an individual finding of impairment is requiredof impairment is required based on the facts of based on the facts of the case. 142 Wn. 2d at 93.the case. 142 Wn. 2d at 93.

Stream closuresStream closures by rule embody Ecology’s by rule embody Ecology’s determination that water is not available for determination that water is not available for further appropriations. A proposed withdrawal further appropriations. A proposed withdrawal of groundwater from a closed stream or lake in of groundwater from a closed stream or lake in hydraulic continuity must be denied if it is hydraulic continuity must be denied if it is established factually that the withdrawal will established factually that the withdrawal will have have any effect any effect on the flow or level of the on the flow or level of the surface water. 142 Wn. 2d at 95.surface water. 142 Wn. 2d at 95.

Squaxin Island Tribe v. Ecology Squaxin Island Tribe v. Ecology (Miller Land & Timber Co.)(Miller Land & Timber Co.)

Ecology can grant a ground water Ecology can grant a ground water application based on a mitigation of impacts application based on a mitigation of impacts to surface waterto surface water

Ecology has authority and discretion to Ecology has authority and discretion to approve a mitigation plan; the adoption of approve a mitigation plan; the adoption of rules to implement RCW 90.44.055 is not rules to implement RCW 90.44.055 is not required. required.

The Board reconciled the basin rule (“clear adverse The Board reconciled the basin rule (“clear adverse impact upon the surface water system”) with impact upon the surface water system”) with Postema Postema (“(“any effectany effect on the flow or level of the on the flow or level of the surface water”) as follows:surface water”) as follows:

““any effects which adversely impact the values any effects which adversely impact the values identified in WAC 173-513-020”identified in WAC 173-513-020”

Squaxin Island Tribe v. Squaxin Island Tribe v. Ecology Ecology

Thus, evidence of an adverse impact is required Thus, evidence of an adverse impact is required to deny a mitigated ground water withdrawal, to deny a mitigated ground water withdrawal, not just evidence of hydraulic continuity with a not just evidence of hydraulic continuity with a closed stream or lake and “any effect” on flows. closed stream or lake and “any effect” on flows.

A reduction in stream flow does not necessarily A reduction in stream flow does not necessarily equate to harmequate to harm

““If a reduction in stream flow occurs only during the If a reduction in stream flow occurs only during the winter months when there is ample flow in a winter months when there is ample flow in a particular stream, for example, it is difficult to see particular stream, for example, it is difficult to see how the water is not “available” for appropriation or how the water is not “available” for appropriation or how it is adversely impacting the base flows how it is adversely impacting the base flows “necessary to provide protection for wildlife, fish, “necessary to provide protection for wildlife, fish, scenic, aesthetic, environmental values, recreation, scenic, aesthetic, environmental values, recreation, navigation, and water quality” as required by WAC navigation, and water quality” as required by WAC 173-513-020.“ Final Order, October 16, 2006.173-513-020.“ Final Order, October 16, 2006.

Squaxin Island Tribe v. Squaxin Island Tribe v. Ecology Ecology

The Board vacated and remanded the ROEs based The Board vacated and remanded the ROEs based on defects in the mitigation plan and hydrogeology on defects in the mitigation plan and hydrogeology modelmodel

Appellant’s ground water model more reliable than Appellant’s ground water model more reliable than the USGS model relied on by the applicant and the USGS model relied on by the applicant and Ecology. Ecology.

Mitigation plan failed to account for the effects on Mitigation plan failed to account for the effects on streamflow of the mitigation sourcestreamflow of the mitigation source

Baseline conditions of the affected creek need to be Baseline conditions of the affected creek need to be assessedassessed

Pumping tests required on all wells under a Pumping tests required on all wells under a preliminary permitpreliminary permit

Monitoring of stream levels is a necessary conditionMonitoring of stream levels is a necessary condition Financial assurances are required to insure Financial assurances are required to insure

performance by the applicant of mitigation performance by the applicant of mitigation conditions.conditions.

Manke Lumber v. Ecology, Manke Lumber v. Ecology, PCHB Nos. 96-102 through 96-106 PCHB Nos. 96-102 through 96-106

(1996)(1996) Decided prior to adoption of RCW Decided prior to adoption of RCW

90.44.05590.44.055 Relied heavily on Colorado precedentRelied heavily on Colorado precedent Aquifer recharge resulting from vegetation Aquifer recharge resulting from vegetation

removal cannot be considered the basis for removal cannot be considered the basis for mitigating or offsetting a water rightmitigating or offsetting a water right

The water used by trees or precipitation The water used by trees or precipitation intercepted by them is part of the resource intercepted by them is part of the resource that belongs to the peoplethat belongs to the people

Granting a water right based on cutting of Granting a water right based on cutting of trees would violate the principle of first in trees would violate the principle of first in time, first in righttime, first in right

CPM Development Corp. v. CPM Development Corp. v. Ecology, Ecology, PCHB No. 03-071 PCHB No. 03-071

(2007)(2007) Under RCW 90.44.050, must Ecology consider Under RCW 90.44.050, must Ecology consider

aquifer recharge from managed stormwater aquifer recharge from managed stormwater ponds, including additional water from removal ponds, including additional water from removal of vegetation, for duration of mining?of vegetation, for duration of mining?

““Vegetation removal does not fall within the Vegetation removal does not fall within the plain language of the reference in RCW plain language of the reference in RCW 90.44.055 to “other resource management 90.44.055 to “other resource management techniques.techniques.

““As a result, Ecology is not required to give As a result, Ecology is not required to give detailed consideration of a plan put forward by detailed consideration of a plan put forward by an applicant if Ecology concludes that it fails, an applicant if Ecology concludes that it fails, as a threshold matter, to qualify as a resource as a threshold matter, to qualify as a resource management technique.”management technique.”

What Works and What What Works and What Doesn’t Doesn’t

““Mitigation Measures Used in Water Rights Mitigation Measures Used in Water Rights Permitting,” (Dept. Of Ecology, April 2003)Permitting,” (Dept. Of Ecology, April 2003)

Rule of ThumbRule of Thumb Defining Impacted Area – aquifer testing Defining Impacted Area – aquifer testing

and modelingand modeling Timing and Scope of ImpactTiming and Scope of Impact Identifying Mitigation Sources and Identifying Mitigation Sources and

ProceduresProcedures Consultation with TribesConsultation with Tribes Monitoring and ReportingMonitoring and Reporting Recent ExamplesRecent Examples

““Road” to MitigationRoad” to Mitigation

1.1. Determine if mitigation requiredDetermine if mitigation required2.2. Conceptually define area, magnitude, Conceptually define area, magnitude,

timing of impacttiming of impact3.3. Evaluate mitigation based on conceptual Evaluate mitigation based on conceptual

understanding – is better definition understanding – is better definition needed?needed?

4.4. If necessary, develop quantitative If necessary, develop quantitative definition of impactdefinition of impact

5.5. Consider mitigation optionsConsider mitigation options6.6. Develop plan and negotiate with EcologyDevelop plan and negotiate with Ecology

Is Mitigation RequiredIs Mitigation Required

Closed Stream?

Consumptive Use?

Others in Area Mitigate?

Conceptually Determine Conceptually Determine ImpactImpact

Is Better Is Better Definition Definition Needed?Needed?

Quantitative Definition = Quantitative Definition = Test and ModelTest and Model

Photo courtesy of Rick Abbott

Photo courtesy of Lamerie

Analytical Analytical

Analytic-ElementAnalytic-Element

Numerical (MODFLOW)Numerical (MODFLOW)

Stream Stream DepletioDepletion/Demann/Deman

d d ForecastiForecasti

ngng

Graphic courtesy of Tom Pors

After the Model, What After the Model, What Next?Next?

Answers or Estimates

How much

Where

When

Identify possible

mitigation options

Options – What WorksOptions – What Works

Stream Augmentation

Options – What WorksOptions – What Works

XTransfer/Retirement of Senior Rights

Options – What WorksOptions – What Works

Moving Production to a Deeper Aquifer

X

Options – What WorksOptions – What Works

Combinations of Methods

+

= Mitigation Plan

Stream Augm

entation

from existing system

for City of Port Orchard, Wells 4 and 10,and McCormick Wells 4B and 5

+

Stop uncontrol

led artesian

flow

X

Options – What WorksOptions – What Works

Combinations of Methods

+

=

MitigationPlan

Stream Augm

entation

from existing system

XWater Right Transfer

for Lakewood Water District, Abitibi Water Right Transfer

+

XResting Water Right

XWater Right Relinquishment

+

Options – What WorksOptions – What Works

Combinations of Methods

+

=

MitigationPlan

XWater Right Transfer

for Trendwest Resorts, Water Right Change Requests

+XWater Right to Trust

+XWater Right Transfer

+$$

$$+ HabitatEnhancement

Options – What Doesn’tOptions – What Doesn’t

Several potential options have not Several potential options have not successfully been implemented as successfully been implemented as stand-alone mitigations, these stand-alone mitigations, these include:include:

credit for habitat enhancementcredit for habitat enhancement credit for water management credit for water management

techniques inherent to the projecttechniques inherent to the project credit for reclaimed water usecredit for reclaimed water use

X

Stop uncontroll

ed artesian

flow

X

X

Develop the PlanDevelop the Plan

Pick from options Pick from options available to available to develop plandevelop plan

Offer/negotiate Offer/negotiate plan with Ecology plan with Ecology and other and other stakeholdersstakeholdersBox of Mitigation Options

$$

Consulting with the Consulting with the TribesTribesCase Study: North Bend

Tribes concerns included:

• definition of impact

• selection of mitigation trigger

•timing of required mitigation

• sources of mitigation water

Questions?Questions?

Graphics and photographs not individually credited are courtesy

of Seldom Seen Photography and/or Robinson, Noble & Saltbush.