Water Resources Planning in the Post-Hirst World. Whatcom County Planning and Development Services January 2017

Transcription

1 Water Resources Planning in the Post-Hirst World Whatcom County Planning and Development Services January 2017

2 Topics 2016 Comp Plan Update Focus on Water Hirst Supreme Court Decision Nooksack Rule Interim Post-Hirst Code Amendments Next Steps Path Forward 2

3 2016 Comp Plan Update Water supply policies found in: Chapter 2 (Land Use) integrate land/water use planning Chapter 5 (Utilities) focus on water delivery to UGAs Chapter 8 (Resource Lands) agricultural water needs Chapter 10 (Environment) instream flows and habitat Common themes Data driven approach Support sustainable and more efficient water use Protect quality and quantity (including instream flows) Ensure urban, industrial and agricultural needs are met Support WRIA 1 watershed and salmon recovery programs Coordination of water resource management initiatives 3

4 Land Use (Chapter 2) New Policy 2A-15: Improve predictability to property owners re: connection between legal water use and land use development by: Supporting completion of groundwater studies. Support water purveyors efforts to develop new water sources and infrastructure to transport that water to those who lack safe potable water or adequate water rights Encourage a negotiated water rights settlement between Tribes and other water users Encourage DOE to protect instream flows 4

5 Land Use (Chapter 2) New Policy 2A-15 (continued) Coordinate with DOE to provide water for both instream flows and out-of-stream users by: Recycling Conservation Water banking Public water system interties Stream recharge augmentation Change in place of use Other alternative water supply measures 5

6 Land Use (Chapter 2) New Policy 2A-15 (continued) Request DOE to create a water management plan for exempt wells in closed water basins that better aligns instream flows with current water rights and legal decisions on hydraulic continuity 6

7 Other New Water Policies 10G-2: Coordinate efforts to bring all water users into compliance with state and federal water laws in a way that enhances instream flows, water quality and habitat while advocating for adequate water for existing agriculture. 10I-3: Develop and implement plans to comply with DOE s instream flow and water management rules and water resource programs. 10I-4: Coordinate local water and land management efforts, plans and data to ensure adequate oversight of water quantity and quality issues. 10I-5 & 6: Quantify water use to promote conservation and maintain availability for both instream flows and agriculture 10I-7: Encourage DOE to be flexible in applying the water relinquishment rule and establish a water bank/exchange program in the county. 7

8 Hirst Supreme Court Decision Ecology s 1985 Nooksack Rule ( WAC) establishes closures and instream flows in WRIA 1 restricting new water right permits but not permit exempt groundwater withdrawals The Board found that [county policies] result in water withdrawals from closed basins and senior instream flows flows that the record indicated drop below the minimum levels 100 days out of the year. The Board properly held that this conflicts with the requirement placed on counties to protect water availability under the GMA The fact that the County's provisions are wholly consistent with Ecology's regulations does not, by itself, render them consistent with the GMA's requirements. 8

9 Ecology Map: WRIA 1 Instream Flow Protection Status 9

10 Ecology s Nooksack Basin Classifications Closure Closed year-round Partial Year/Seasonal Closure Closed part of the year Minimum Flow no withdrawals when stream flows not being met Low Flow no new withdrawals that would impair critical flows 10

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12 Nooksack at Ferndale IRPP WY WY O N D J F M A M J J A S 12

13 Bertrand Creek IRPP Flow WY 2016 WY O N D J F M A M J J A S 13

14 Other Considerations Must meet all downstream flow requirements Surface Water and Groundwater basins might not coincide Residential uses require an uninterruptible year-round source of water 14

15 Exempt Wells RCW Well is not exempt, the withdrawal is Only exempt from permitting, not other water laws Exempt wells are subject to relinquishment 5 years use it or lose it Right is perfected when put to beneficial use; not when well is drilled 15

16 Hirst Supreme Court Decision When Ecology adopted the Nooksack Rule, it did not believe withdrawals from deep confined aquifers would have any impact on stream flows. However, we now recognize that groundwater withdrawals can have significant impacts on surface water flows and Ecology must consider this when issuing permits for groundwater appropriation. We hold that the same standard applies to counties when issuing building permits and subdivision approvals. 16

17 Hirst Supreme Court Decision The County s comprehensive plan does not protect water availability because it allows permit-exempt appropriations to impede minimum flows. The GMA places an independent responsibility to ensure water availability on counties, not on Ecology. To the extent that there is a conflict between the GMA and the Nooksack Rule, the later-enacted GMA controls. 17

18 Hirst Supreme Court Decision The GMA places the burden on counties to protect groundwater resources, and requires counties to assure that water is both factually and legally available before issuing permits. In order to comply with the GMA, counties must receive sufficient evidence of an adequate water supply from applicants for building permits and subdivisions before the county can authorize development. 18

19 Additional Legal Constraints In Postema, we held that a minimum flow, once established by Ecology, is an existing water right that may not be impaired by subsequent groundwater withdrawals. Where there is hydraulic continuity and withdrawal of groundwater would impair existing surface water rights, including minimum flow rights, then denial [of a permit] is required RCW , which authorizes Ecology to issue permits for water appropriation, does not... differentiate between the impairment of existing rights based on whether the impairment is de minimis or significant. Hirst decision, quoting Postema. 19

20 Postema Legal Constraints Aquifer Cross Section 20

21 Additional Legal Constraints Supreme Court rejected an Ecology-approved water right appropriation with a mitigation plan that provided a net ecological benefit because the Court found the minimum instream flows were not mitigated with wet water at all times of the year. Therefore the proposed habitat improvement out-of-kind mitigation was deemed inadequate even though it more than mitigated for ecological (functions and values) losses. Mitigation must be in kind, in time, in place Foster decision, 2015 Can t use vegetation removal as mitigation Manke Lumber (1996)/ICON (2007) decisions 21

22 Post-Hirst Code Amendments Title 24 Health Code ,.060 Applicants must demonstrate to the Health Dep t adequate water supply, documented by the Health Department s Water Availability Notification. Supply must be adequate in terms of quality, quantity, legal availability 22

23 Post-Hirst Code Amendments Title 24 Health Code A Health Dep t standards for legal availability: 1) Water right from Ecology 2) Letter from public water purveyor 3) Rainwater catchment approved by Health 4) Permit-exempt well in area not affected by Nooksack rule okay 5) For permit-exempt wells in affected area: a. Hydrogeological study to determine impairment b. Mitigation Plan if impairment is found 23

24 Post-Hirst Code Amendments Unaffected area per Ecology November 14 letter 24

25 Post-Hirst Code Amendments Title 24 Health Code B Water availability notice not required for: 1) Projects that don t require potable water 2) Remodels/replacements on exempt well (quality & quantity still required) 3) Remodels/replacements on surface withdrawal increasing floor area 50% or less (quality & quantity still required) 25

26 Post-Hirst Code Amendments Title 15 Buildings Title 20 Zoning Title 21 Land Divisions Adequate water supply required for building permit, admin/conditional use permits, and subdivisions, per zoning code definition in WCC

27 What Are We Doing Now? Interim ordinance to comply with Supreme Court decision in effect until mid-march, 2017 until renewed or adoption of new ordinance replacing it Explore legal options for pending/approved permitexempt well dependent lots Spatial analysis of Ecology well data and parcels affected by the Hirst decision Consult with Legislature on rural water supply and instream flow impairment and mitigation solutions Fund and complete final phase of the LENS groundwater model (18-24 months) 27

28 Preferred State Legislative Action Fairness and equity between state/local governments shared responsibilities to manage the state s water resources to both protect instream flows and accommodate responsible planned growth Allow Counties to rely on State adopted instream flow rules to determine legal water availability. Allow Counties to condition local permits to limit daily use of state permit exempt groundwater withdrawals to less than 5K gpd. Establish DOE mitigation program for permit exempt wells in closed basins based on cumulative impact analyses to identify the instream flow impairment significance of permit-exempt withdrawals in particular basins. Fee in-lieu option for affected permit applicants. Provide financial assistance for developing public rural water supplies, mitigation projects and/or water banks Allow use of municipal inchoate water rights for mitigation purposes Allow for out-of-kind instream flow impairment mitigation option that provides an overall net ecological benefit. 28

29 Mitigation Options Private individual well mitigation Site-based consumptive use strategies Efficiency, conservation, metering Public basin-wide mitigation State/County fee in-lieu mitigation program Stream (or groundwater) augmentation Improved storage (winter flow capture) Water bank(s) Improve cost-efficient delivery of public water Deep aquifer exploration 29

30 Path Forward Supreme Court remanded case back to GMHB for further proceedings consistent with this decision Legislative action (in next 6 months) needed to determine path forward for counties statewide If no Legislative action occurs counties are on their own to fix the problem Improve delivery of public water supply in rural areas 30

31 Comments, Questions & Ideas? What is the appropriate (or likely) legislative fix given that according to Ecology and other research published after the record in the Hirst case was closed private domestic water withdrawals account for less than 1.5% of all consumptive water use in Whatcom County? Are there reasonable solutions that can benefit both fish and people? 31