Join Aspect’s Dan Haller at the upcoming LSI Water Law in Washington Seminar on June 10-11. Dan will join a standout group of experts addressing some of the most pressing issues in Washington water law including watershed planning, water rights adjudications, municipal transfers and inchoate rights, Tribal water rights, droughts, and more. Dan’s presentation will provide a status update on the watershed planning process and RCW 90.94 compliance across 14 Washington watersheds. The Conference will be presented via live Interactive Broadcast. For more details visit the LSI website.
Building the Biggest Water Bank in Washington State
In Spring 2021, the Washington State Department of Ecology (Ecology) started the public review process for the TransAlta water bank—at 28,000 acre-feet per year, the biggest water bank in the state to date. This is the first significant water bank for Southwestern Washington and came together through years of planning, working with Chehalis basin stakeholders, and extending the water rights life of a Chehalis River hydropower project. The trigger for this new water bank is TransAlta retiring its decades-old hydropower plant on the Skookumchuck River, thus freeing up tens of thousands acre-feet of water rights for the basin.
Water banks Add Life to Thirsty Watersheds
In water-scarce basins — even on the western/‘rainy’ side of Washington State -- water banks provide an innovative mechanism to reuse water rights; once water is no longer needed for its original purpose it can be made available to meet new needs. Water banking involves a partnership between the holders of valid water right holders and Ecology. While the water right holder controls how new uses are permitted, the State of Washington is responsible for determining the amount of water that will be preserved, and then protecting that water from other users.
The TransAlta water banking process has proceeded through an Aspect-led permitting path that involves an exhaustive vetting of the historical water use, and the development of a new process to guide the reallocation of future uses. Water rights that were issued for other purposes – such as industrial supply – are converted to instream flows purposes, and generally become available to mitigate new uses.
The TransAlta water bank solution is a textbook example of how pre-planning saved a significant block of valid water rights from relinquishment for non-use. Water that had been allocated for a highly consumptive out-of-stream use will now be held in trust for instream flows, with select new uses being reallocated for new purposes under Ecology’s permitting process. The end result will be a combination of water that will remain instream, and new water right permits for new uses.
Tapping the Skookumchuck River to Boost Chehalis Basin’s Water Future
Stretches of the Skookumchuck River, like this one taken near the City of Centralia, will soon receive more water.
The TransAlta water bank is situated near Centralia, Washington, along the Skookumchuck River—a major tributary of the Chehalis River. For decades, TransAlta has used the waters of the Skookumchuck to produce coal-based electrical power; however, as the company began to make plans for a life after coal, it also had the foresight to make plans for its water rights, which represents more than 50 cubic-feet per second (that is 22,500 gallons per minute) and 28,000 acre-feet per year of out-of-stream uses.
TransAlta’s retired Unit 1 of its Centralia, Washington coal-fired power plant in 2020. Unit 2 is planned to close by the end of 2025
According to TransAlta’s Water Bank Overview FAQ, this is “enough water to fill 14,000 Olympic-sized swimming pools or irrigate 14,000 acres of farmland.”
Seeding 28,000 Acre-Feet of Water for Fish and Agriculture in the Chehalis Basin
While the budding water bank is still in the early planning stages, several new water uses have already been identified. One deal involves making water available to the City of Centralia for its future needs and to provide a source of mitigation water to offset the impacts of future private wells throughout the watershed. TransAlta also envisions making water available for the basin’s expanding agricultural needs and ensuring leftover water remains instream to protect aquatic resources.
Taylor Dayton Presenting on Washington Water Rights - April 14
Aspect Water Resources Engineer Taylor Dayton, PE, will present to the Central Washington University America Water Resources Association student professional chapter on Wednesday, April 14, 2021.
The presentation will explore the history of water law in Washington State, the process for obtaining new water right, the process for changing existing water rights, consumptive use and spreading , water right valuations, and water right holder “musts”.
See Taylor talk about what you’ll learn here:
Know Your Water Rights Math: Annual Consumptive Quantity 101
The Washington State water code is daunting. The network of rules and regulations is complex: Washington Administrative Codes. Revised Code of Washington. Hundreds of court cases. Ecology administrative policies. It can be difficult to navigate.
In this mix is a key concept: ‘Annual Consumptive Quantity’ or ‘ACQ.’ Originating in 1997, ACQ is a specialized analysis that is triggered whenever a water right is changed to expand its authorized irrigated acreage or add a purpose of use (while retaining its current purpose of use).
The ACQ process can have big implications on the outcome of a water right change – especially if the water right falls into one of the special exceptions that disqualify it from ACQ.
Taylor Dayton, Aspect engineer and member of the Chelan County Conservancy Board, recently gave a presentation on what Annual Consumptive Quantity is, how to apply it, and possible alternative approaches to changing the attributes of a water right in water rights permitting projects.
See a video of her presentation below:
Contact Taylor to learn more.
Join us on November 3rd and 4th for the 13th Annual Washington Water Code Seminar
On November 3rd and 4th, join (virtually) Aspect’s Principal Water Resource Engineer Dan Haller and Senior Associate Hydrogeologist Tyson Carlson at The Seminar Group’s 13th Annual Washington Water Code Seminar.
As Co-chair, Dan will guide a distinguished group of professionals presenting on the past, present, and future of key issues in water law, including relinquishment, adjudications, conservancy boards, water banking, and instream flows.
In addition to Co-chairing the conference, Dan is leading the “Water Right 101 Power Hour: An interactive presentation on how the prior appropriation system works, impairment in water rights, and how engineering, hydrogeology, policy, and legal disciplines all have important roles in administering the water code.”
Tyson is co-presenting at the “COVID-19 Impacts on Water Resources in Washington” Session. This session aims to inform attendees on the “economic impacts, regulatory response, and use of technology in adapting to COVID-19 issues in water resources; New Health and Safety Standards for Projects; Use of Technology (drones) for site visits; how technology is changing the water resources practice.”
The Conference will also highlight Ecology’s recent legislative report on the future of adjudications in Washington. Given that the Acquavella Adjudication in the Yakima basin lasted 42 years, Ecology’s recommendation to adjudicate basins in Whatcom County and near Lake Roosevelt will help shape the future of water right law and policy for years to come.
Learn More about the upcoming conference here: https://www.theseminargroup.net/seminardetl.aspx?id=6064
Inside Water Rights: Focusing on the Consumptive Use Principle
Washington state water rights law can be both complex and arcane. However, there are key fundamental principles that decide whether a project will get to use water the way they want to. One of these principles is not increasing consumptive use under a water right. This rule originates from the “no impairment” standard in Washington which says you can change your water right to a new use, but you can’t harm any other water right holder by doing so. One way you can impair another’s water right is by increasing the “consumptive use” as a result of your project.
How Spreading Acreage Policy Increased Focus on Consumptive Use
Before 1997, consumptive use was not a common term of art in water rights. That is because the law prohibited increasing the number of acres authorized on your right, even if you wouldn’t use any more water by doing so. This is still the case in Oregon. However, in 1997, the Legislature allowed increases in acreage (also called “spreading”) so long as the consumptive use was not increased.
For example, this allowed farmers to change from 40 acres of orchard to 80 acres of vineyard, which was not allowed before. In order to prevent impairment by an increase in consumptive use, the Legislature created a formula to quantify how much of your total use is divided into consumptive use (which is typically evapotranspired by plants) or return flow (which seeps into the ground and becomes available for others to use).
‘Use-it-or-Lose-it’ and The Loyal Pig Vineyard Story
Loyal Pig Vineyard case hinged on the consumptive use principle, a fundamental element of water rights projects and case law.
Recently, there was an interesting case hinging on the consumptive use principle that was decided in the Court of Appeals (where it ultimately was denied after an earlier victory in Superior Court). The Loyal Pig case was arguing that it need not calculate consumptive use for its current transfer because it had already done so in a previous transfer less than 5 years earlier. Because the “use-it-or-lose-it” relinquishment standard is a 5-year standard, they sought to harmonize these two different elements of the water code and simplify later transfers. This was important to them because the final amount of acres they sought to spread was not known at the start of their project, but rather a function of how efficient they could be with their crops.
Ultimately, the Court decided that the plain language of the consumptive use test trumped any benefit to harmonize different elements of the water code, although that could be done legislatively. Now Loyal Pig can either appeal to the Supreme Court or start over and process their transfer with the proper calculations.
Knowing the Case Law is Key to Water Rights Permitting
While this case was procedural in nature, it shows that knowing and staying up to date in water rights case law is crucial to water rights permitting success. Aspect routinely works with farmers and agricultural clients on quantifying consumptive use of their water rights and has successfully processed numerous spreading transfers.
New Western States Water Rights Marketplace Opens
Western Water Market – a new online marketplace to buy and sell water rights – launched in February in Washington state, with plans to eventually expand water rights listings across several western states. WWM looks to streamline a patchy water rights marketplace process, which traditionally has relied mostly on word of mouth to connect buyers and sellers.
Aspect welcomes this site as another way for our clients to reach potential buyers and sellers, and we have migrated several of the water banks we manage to this listing service.
Learn more about Western Water Market in this interview with WWM founder Kristina Ribellia in this recent article with the Capital Press.
Water Banking Takes Center Stage in Washington State 2020 Legislative Agenda
The 2020 Washington State legislative session kicked off in January and the future of water rights and water banking in the state are taking center stage in the early legislative discussions. At least six prominent bills centering around the State’s “Trust Water Rights” program are being proposed. These bills range from advocating for incremental changes to fundamentally altering how water is permitted, including ideas to prevent or add new criteria for out-of-basin transfers; set up a new “community needs” test to form a water bank; prevent conservancy boards from working on water banks anymore; to charge money for setting up and running banks to cover State time.
Why is Water Banking a Hot Topic?
There’s been an increasing public spotlight in Washington State water permitting issues, including some recent worries that out-of-area speculation is influencing the water market. A reminder that in 2017, the entire $4 Billion state legislative session hinged on the resolution of the Hirst water rights negotiations. That 2017 legislation eventually led to the 2018 Streamflow Restoration Act, which manages over $300 million dollars in state funding to address water rights and supply challenges throughout the state’s watersheds to help habitat, agriculture, and communities over the next 15 years.
Current Water Rights Resources and Information
There’s a range of informed news and opinion resources on this complex topic of water rights and water banking, here are just a few recent ones to stay informed:
2020 Ecology Water Resources -- Bills of Interest, 2020 Legislative Session
Legislature Eyes Ways to Control Speculation in Washington Water Supplies
Learn More About Water Banking
Aspect is heavily involved in the water banking arena, helping clients with policy (with Washington State University on the Columbia Basin Long-Term Water Supply and Demand Forecast) setting up and running banks (e.g., Oroville-Tonasket Irrigation District (OTID) and the Bourne bank, among others), and helping connect buyers and sellers at the local level.
Contact Dan Haller or Tim Flynn to learn more.
Advancing Washington State Water Law for Fish, Housing, Farming, and Industry in 2020
In November 2019, the “Foster” Task Force (referencing the name of the 2015 water rights case it was charged with reviewing) delivered its Water Resource Mitigation Report (Report) to the Washington State Legislature. As the Legislature meets in 2020, this topic may arise in the water bills that will be debated in the coming months. The Report provides an update on progress in the Task Force to define mitigation sequencing, the five “pilot” implementation projects, and how this effort is being integrated with Ecology’s Net Ecological Benefit guidance that was adopted in 2019 for permit-exempt well mitigation.
The issue of how out-of-time and out-of-kind mitigation will be evaluated and potentially codified by the Legislature is a critical question that affects future development in Washington (new housing, farming, and industry). It will also create a framework for how these important out-of-stream needs can be harmonized with fish recovery goals in Washington.
Aspect is currently facilitating two of the RCW 90.94 watersheds that are required to develop Net Ecological Benefit Watershed Plan Updates: Okanogan and Little Spokane. The Foster Task Force’s recommendations (summarized from the Task Force’s group which includes almost 20 members from state government, agencies, municipal water purveyors, tribes, farming, and advocacy groups) on mitigation sequencing may influence these plans that must be adopted by Ecology in early 2021. Aspect’s Dan Haller had the opportunity to present several mitigation projects Aspect has helped clients develop to the Task Force to help inform mitigation sequencing. Check out the report at this link to get up to speed with this emerging water issue.
Contact Dan Haller if interested in discussing the implications of this report further.
Aspect Team to Present on Water Rights at Seattle Law Seminar November 20 and 21
At The Seminar Group’s November 20 and 21 forum on Washington state water rights, Aspect’s Dan Haller, Tyson Carlson, and Taylor Dayton will be presenting on a variety of features of Washington’s Water Code.
Dan Haller, Tyson Carlson, and Taylor Dayton will discuss a range of Washington State water rights topics at The Seminar Group’s November 20-21 forum.
As Program Co-Chair, Principal Engineer Dan Haller, alongside Jeffrey Kray from Marten Law PLLC, will introduce both Day One and Day Two sessions. Dan will also join a panel discussion on Day One — along with David Christensen with Ecology and Sara Mack of Tupper Mack Wells PLLC — covering current relinquishment law and legislative themes.
Also on Day One, Project Engineer Taylor Dayton ( Chelan County Conservancy Board member) joins David McClure, Executive Assistant of the Klickitat County Water Conservancy Board, to discuss the past, present, and future of water right transfers from the Conservancy Board perspective.
On Day Two, Senior Associate Hydrogeologist Tyson Carlson joins a panel discussion — with Ecology’s Trevor Hutton and Kittitas County Public Health’s Erin Moore — on Kittitas County’s groundbreaking water bank program.
The sessions will be at the Seattle Hilton and registration is still open.
Exploring the Complexity of Water Rights Investing
The Seattle Times published an in-depth two-part series looking into recent challenges and proposed solutions of investing in water rights in Washington State. The articles spotlight the Chewuch Canal in the Methow Valley and a farm in the Palouse as two examples of different perspectives on water banking, the state’s Trust Water Rights Program, and what it means for the future of water in some of the state’s most sought-after agricultural centers.
Given Aspect’s experience with thousands of water rights projects as well as the majority of the state’s water banks, we welcome discussion on the complex topic of water rights investing in the Pacific Northwest.
Contact Tim Flynn and Dan Haller if you’re interested in more discussion on these topics.
The State’s Longest-Running Water Rights Adjudication is Coming to an End
In 1977, James J. Acquavella’s name was listed first on the summons when Ecology filed a petition for an adjudication to determine the legality of all claims for surface water in the Yakima River Basin – birthing the Ecology v. James Acquvella, et al water rights case. Forty-two years and 2,500 claimants and interested parties later, it is coming to a close. Some takeaways for this milestone moment in Washington state water management are:
Starting in 1977, the Department of Ecology v. Acquavella adjudication is the longest-running general adjudication in state history, determining the validity and establishing priority of surface water claims in the Yakima Basin.
With the issuance of the Final Decree by Yakima County Superior Court, water right holders in the Yakima Basin will finally have certainty over the authorized quantities and purposes and places of use of their water right claims.
Adjudicated water right certificates will be issued by Ecology for all claims determined by the Court to be valid; water right holders will no longer need to get approval of the Court to complete a change or transfer a water right, but instead file applications with Ecology like everywhere else in the State.
During the adjudication, stakeholders in the Yakima Basin continued to lead the state in providing innovative approaches to water resource management challenges, including early adoption of water banking and mitigation markets to ease permitting of new water rights, and development and implementation of the Yakima Basin Integrated Plan.
Aspect has worked on a variety of Aquavella claims over the decades – including hundreds of due diligence water right evaluations; helping buyers/sellers move and change these rights; and developing water banks through the State’s Trust Water Right Program to support efficient transfer of existing rights and permitting of new, mitigated water rights.
See what else Aspect’s Water Resources practice has been up to.
Learn about Washington Water Law
Aspect’s water law expert, Dan Haller, will be presenting on Water Banking for Agricultural Water Supplies at the 27th Annual Water Law in Washington conference (June 14-15). This year’s conference focuses on major legislative changes, new case law, and important practical information for water rights and resource management in the State of Washington.
Aspect’s Dan Haller Sharing His Water Rights Strategies and Discussing the New Exempt Well Legislation at the Central Washington Agriculture Seminar
On April 6th, Aspect’s Dan Haller will be speaking on three water right topics: how to stretch your existing rights to cover new irrigated lands (spreading), the new legislation on rural exempt wells (ESSB 6091), and relinquishment protection strategies.
Join Dan and other distinguished speakers for the FREE Central Washington Agriculture Seminar.
What the Hirst “Fix” Signals for WA's Rural Water Users and Managers
Last month, after months of delay that even stopped Washington state’s capital budget from passing, the Washington State House and Senate passed ESSB 6091 to address legal water availability issues for exempt well users stemming from the landmark Whatcom County v. Hirst case. Because of the complexity of implementing the new law, it is too soon to know all of the consequences of this proposed fix. However, here are several early takeaways:
What it means
- In many, but not all, areas of the state, the new law allows building permits relying on exempt wells in areas with instream flows to be approved by local jurisdictions without reviewing each case for impairment considerations.
- Overall impairment to instream flows caused collectively by new exempt wells is to be addressed through restarting the watershed planning process in Water Resource Inventory Areas (WRIAs) with no adopted Watershed Plan, or through an update of existing adopted Watershed Plans.
- Plan recommendations to improve streamflows may include, among other options, acquiring senior water rights, water conservation, water reuse, off-channel storage, and aquifer recharge.
- Several watersheds were specifically excluded from the law based on other regulatory considerations, including:
- Watersheds with instream flow rules that explicitly regulate exempt wells and provide for reserves, such as the Stillaguamish, Methow, and Wenatchee basins. These watersheds must rely on the finite reserves of water already allocated.
- Federally regulated watersheds (Yakima basin).
How we got here
Under existing state law (RCW 90.44.050), the groundwater permit exemption allows, for a limited number of purposes, water users to construct and develop groundwater wells for small quantities of groundwater without obtaining a permit. In October of 2016, in a landmark decision on the use of exempt wells and county responsibility for evaluating impacts from the wells on instream flows, the Washington Supreme Court (Court) ruled in the Whatcom County v. Hirst case that the Growth Management Act (GMA) placed an independent responsibility to ensure water availability on counties, not on Ecology. Counties across the state had varying responses to the decision, with some placing a moratorium on granting building permits relying on unmitigated exempt wells, others including disclaimers on proof of legal water availability, and others taking a wait and see approach.
New $500 fee and new Exempt Well Use Limitations
The new Bill 6091 requires a new $500 fee to be paid as part of obtaining a building permit relying on an exempt well, to support watershed planning efforts. In basins with adopted Watershed Plans, the law allows an exempt well to use a maximum average of 3,000 gallons per day, while in basins with no watershed plan, a limitation of 950 gallons per day is imposed.
Understanding of Bill 6091 Still Evolving
The Washington Department of Ecology is responsible for implementing ESSB 6091, and is still formulating relevant policy. As general understanding and consensus evolves, Aspect will continue to comment on this for clients.
The following link provides the Washington Department of Ecology’s Initial Policy Interpretations on ESSB 6091:https://fortress.wa.gov/ecy/wrx/wrx/fsvr/ecylcyfsvrxfile/WaterRights/wrwebpdf/6091-EcologyPolicyInterpretations.pdf
The following link provides the Hirst Supreme Court Decision:https://fortress.wa.gov/ecy/wrx/wrx/fsvr/ecylcyfsvrxfile/WaterRights/wrwebpdf/91475-3opinion.pdf
Aspect's Dan Haller Presenting on Water Law, Water Banking, and Water Rights - 9/28 & 9/29
Washington Public Utility District Association Conference - 9/28
On day two of this year’s WPUDA conference in Leavenworth, Aspect’s Dan Haller will be participating on a morning session panel titled “What’s a Water Bank and How Does it Work?” During the afternoon sessions, Dan will be giving a Water Rights 101 presentation. Public Utility District's manage numerous water rights over domestic systems, dams, hatcheries, and Parks, which put them in a unique position to participating water Banks to accomplish their overall District. Protecting District water rights is a key priority to ensure they are available for multiple District business needs.
Yakima County Bar Association - 9/29
Dan will be giving a presentation on the Hirst decision and how it affects Eastern Washington water rights to the Yakima County Bar Association September 29th. The Hirst decision changed the regulatory framework of County rural building permit and land use policies and is prompting numerous changes from new regulations, moratoriums on building, creation of water Banks, and water write transactions.
The Hirst Decision: The Water Law that Halted WA's Budget
While critical to water use and supply in Washington state, water rights typically keep a low profile in the public eye. That's all changed over the last couple of weeks as the Hirst decision has made the headlines as a key political sticking point that has, for now, stopped the state's $4 billion capital construction budget from being approved.
With the spotlight on this landmark water use decision, Aspect's Dan Haller was interviewed by the Yakima Herald to help understand it. The article also hears from builders and counties grappling with what Hirst means for them.
Aspect Helps Kittitas County Offer 'Over-the-Counter' Water Rights
Aspect has been assisting Kittitas County with implementation of their water bank. The newest feature is a general permit that allows the County to cover non-exempt uses in a streamlined manner through issuance of mitigation certificates, similar to their over-the-counter approach for exempt well mitigation. This allows property owners to continue to interface in a streamlined and coordinated manner with Kittitas County instead of seeking one-on-one solutions with Ecology, that would be more time-consuming and expensive. This is another example of how Aspect continues to assist counties with innovative solutions to Hirst-related issues.
Check out this article by The Daily Record News for more detail!
Aspect President, Tim Flynn, to Guest Lecture at Seattle University Law School
Aspect President, Tim Flynn, has been invited by Michael O’Connell, former partner at Stoel Rives LLP and Adjunct Professor at Seattle University, to guest lecture at Seattle University’s Water Law course this November. Tim is excited to share what he’s learned in the decades of providing water rights and aquifer storage and recovery services to clients throughout Washington’s diverse landscapes.
Landmark Hirst Water Rights Decision Increases Burden on Counties to Evaluate Exempt Well Impacts
In a landmark decision on the use of exempt wells and county responsibility for evaluating impacts from the wells on instream flows, the Washington Supreme Court (Court) recently overturned a lower court decision in the Whatcom County v. Hirst case. The lower court decision appealed in this case essentially directed local governments to follow the Washington Department of Ecology’s (Ecology) interpretation of instream flow rules in determining water availability. This Court decision rescinds that direction, noting that the Growth Management Act (GMA) places an independent responsibility to ensure water availability on counties, not on Ecology. The decision also noted that the fact that county provisions are wholly consistent with Ecology’s regulations does not, by itself, render them consistent with GMA requirements.
The Ruling Constrains Exempt Well Use in Washington
Under existing law (RCW 90.44.050), the groundwater permit exemption allows, for a limited number of purposes, water users to construct and develop groundwater wells for small quantities of groundwater without obtaining a permit. According to the new ruling, there is no question that a permit-exempt well may not infringe on an earlier established right to water, including instream flow rules, under the doctrine of prior appropriation. The Court also found it contradictory that Ecology must consider the effect of groundwater appropriations on minimum flows when issuing water right permits, while counties did not consider these same impacts when issuing building permits with exempt wells. This means that in a basin with adopted minimum instream flows, any new exempt well or exempt well drilled after adoption of flows may be subject to interruption when flows are not met, rendering these wells legally unreliable as a continuous domestic water source.
The Ruling Increases County Responsibility for Water Availability Determinations under GMA
In addition, this ruling imposes a strict standard for county review of cumulative impairment from exempt wells due to rural development. Aspect has been working with Spokane, Stevens, and Pend Oreille Counties to establish a water bank for the Little Spokane River watershed. A water bank is a mechanism that facilitates transfer of water rights between sellers and buyers through use of the state’s trust water right program, using banked water as mitigation for new water uses. The three counties anticipated that use of unmitigated exempt wells would continue to be more restricted in the state and proceeded with water bank development to proactively address this concern, along with addressing other future water needs in the basin. The recent ruling in Whatcom County v. Hirst only increases the need for local jurisdictions to be directly involved with proactive water resource management.