The Senate Agriculture, Water, Natural Resources, & Parks Committee will hear SB 5517 on Monday, February 6, at 1:30 PM. SB 5517 proposes implementing recommendations from the Joint Legislative Task Force on Water Resource Mitigation, also known as the Foster Task Force.
This bill addresses several issues stemming from the 2015 Washington Supreme Court decision Foster v. Ecology, City of Yelm, and Washington Pollution Control Hearings Board. In that decision, the Court made it more difficult for the Department of Ecology (Ecology) to approve water rights change applications without direct, in-time, in-place mitigation. It also rendered Ecology’s ability to utilize the “overriding considerations of public interest (OCPI)” exception for impairment to approve water rights applications when public benefits far outweigh any impact on stream flows nearly impossible.
The state Supreme Court made three key rulings in the case(1):
- OCPI cannot be used to justify permanent allocations of water.
- No level of impairment to instream flow is allowed, regardless of magnitude or ecological impact.
- Out-of-kind mitigation strategies, such as habitat improvements, cannot be used to address the impairment of instream flows.
The proposals in this bill are a long time coming. The Foster Task Force has been meeting since 2018.
It was formed by SB 6091 (2018)“to review the treatment of surface water and groundwater appropriations as they relate to instream flow and fish habitat, to develop and recommend a mitigation sequencing process and scoring system to address such appropriations, and to review the Washington Supreme Court decision in Foster v. Department of Ecology.”
In SB 5517, the Foster Task Force recommends establishing in the statute that hydraulic continuity between groundwater and surface water cannot be the sole basis for denying an application for groundwater withdrawal, even in cases with unmet minimum surface flows. It also establishes a basis for considering in-kind and out-of-kind mitigation strategies that improve the functionality and productivity of affected fish populations and related aquatic habitats for impacts from new withdrawals. Finally, it overturns the court’s basis for rendering the OCPI exception nearly impossible to utilize by clarifying that “withdrawal” does not only mean temporary uses of water but both temporary and permanent.
WSAC will testify in favor of SB 5517.
WSAC, Policy Director
1) Ecology, Washington State Department of, Foster decision, Department of Ecology State of Washington, https://ecology.wa.gov/Water-Shorelines/Water-supply/Water-rights/Case-law/Foster-decision