Unfortunate Suite of Governor-Backed Water Bills

Josh Baldi joined the Washington Environmental Council staff in 1992 and is now the policy director, overseeing WEC’s government relations work. Josh is responsible for helping to define strategy on legislative issues, analyzing proposals, conducting research and acting as the WEC liaison with elected officials and other key decision makers.

Unfortunately, a suite of governor-backed water bills passed the Legislature in the waning hours of the first special session. This is a big setback for stream flow protection, water quality and salmon recovery.

At the insistence of the Senate, three water bills became a package deal toward the end of regular session with the governor wanting the “muni” bill (HB 1338), the Senate wanting the “MVID” bill (SB 5028) and the House wanting the “watershed planning” bill (HB I 336). This resulted in a political alliance that saw the city/utility lobby, the agriculture lobby, the Department of Ecology, the Senate, the House chair and the governor’s office all working together to pass the water deal. The fact that the environmental and tribal community held off the bills until the 21st hour of the 135th day is actually quite remarkable.

We were able to hold back the package for so long because SB 5028 is clearly bad public policy. (Yes folks, good public policy still has some value in Olympia.) We worked with the House Democratic caucus to ensure that a majority of the caucus opposed the bill. Leaders in the House had made a commitment that the bill would not be moved over a majority of the caucus.

Our internal vote count before SB 5028 was moved to the floor and, indeed, the final vote count show that the environmental community did its job. Unfortunately, given the politics of the situation, we were, in effect, rolled.

HB 1336: Requires implementation of watershed plans and gives them more weight (mixed bag);

HB 1338: Allows utilities and other municipal water users to increase their water use in the absence of stream flow protections. The bill does require these water users to meet undefined water conservation standards, with the exception of furthering water conservation (very bad);

SB 5028: Prohibits the state from enforcing clean water laws against water withdrawals that lower stream flows or dewater streams entirely (very bad).

Obviously, the outcome is very disappointing, but not surprising given the politics.

It’s important to note that the governor played a big role in this deal. Ironically, in 1997 Governor Locke vetoed legislation virtually identical to the policies embodied in HB 1338. Clearly, the water package as a whole undermines his salmon recovery strategy and the principles of his “Water Action Strategy,” which purports to move forward the interests of people, farms and fish together, in increments, over time.

Finally, for those of you involved in watershed planning, both HB 1338 and SB 5028 undercut planning efforts by granting water users new benefits now, regardless of the objectives of your local plan.

While the environmental community may be down at the moment, we are far from out. The rules of the game may have changed, but we’re still in it and need to determine how to move forward the values we all care about. Following is a more detailed breakdown of each bill, presented with the Department of Ecology’s formal spin, followed by a translation.

HB 1336–Watershed Plan Implementation

What Ecology formally says of the bill (culled from a list of eight statements):

•Requires a detailed implementation plan within one year of accepting implementation funds.

•Each implementation plan must include strategies and interim milestones to provide sufficient water for agriculture, municipal needs and instream flows.

•Where the Department of Ecology participated in development of a watershed plan, the department must rely on the plan as the framework for future water resource management decisions. The department may only amend such a plan through ‘negotiated rulemaking.”

Translation

•Says what many expected: watershed plans are intended to be implemented and not sit on a shelf.

•This is a positive: for the first time in state law we have a requirement for achieving—not just setting—instream flows. Unfortunately, there is no required timeline and there are no compliance assurances, so it is difficult to determine whether this objective will ever be realized.

•The concerns: seeks to further limit state interests by forcing Ecology to rely on the plans as “the framework for future decisions.” If a watershed has a balanced plan, this will not be a problem. However, feedback from many planning units indicate significant concerns about whether plans will adequately address stream flows.

What Ecology says the bill does (culled from a list of six statements):

•Preserves Ecology’s authority to condition water quality certifications for power dams.

•Prohibits the department from using the water quality act to condition the full exercise of a state water right.

•Increases the penalties for violating water rights laws from a maximum of $1 per day (set in 1917) to a range of $100 to $5,000 per day, based on the ‘seriousness of the violation.”

Translation

•Even with regard to hydroelectric dams, where the state’s authority in this area has been confirmed by the courts, the bill adds additional hurdles the state must meet. This will make it more difficult for Ecology to protect water quality when permitting hydropower projects.

•The bill prevents Ecology from enforcing clean water laws against water diversions and withdrawals that dry up streams, kill fish, and cause water pollution as long as the diverter has a water right. Hundreds of streams throughout Washington fail to meet water quality standards as a result of reduced stream flows—often caused by authorized water use. Other than buying the offending water rights, ESSB 5028 leaves the state with no authority to remedy water quality problems caused by water diversions.

•Having reasonable fines for violations of water laws makes good sense; sacrificing water quality protection to get it doesn’t. Further, it’s important to understand that most problems associated with dewatered streams are caused by authorized—not illegal—water use.

What Ecology says of the bill (culled from a list of 11; additional hint: whenever the legislature “clarifies” a policy, lawmakers are in fact making new public policy):

•Clarifies the definition of municipal water supply.

•Clarifies that the place of use of municipal water rights includes the municipal supplier’s service area, as authorized by the Department of Health. Any change in a place of use must not be inconsistent with land-use or watershed plans. Establishes a duty to serve within the authorized retail service area.

•Clarifies the legal status of existing municipal water right certificates issued for future growth by declaring them to be in good standing.

•Mandates water conservation for all municipal suppliers.

Translation

•Grants that utilities and other purveyors (i.e., any entity delivering water to IS connections or more, such as water and sewer districts) have status as “municipal water suppliers” and therefore all the benefits of HB 1338. This includes the right to unused water even if other needs, such as stream flows, are not being met.

•Expands the area of authorized water use for water utilities without adequately understanding the impacts on stream flows.

•Allows utilities, unlike all other water users, unlimited time to grow into very large water rights, with no corresponding duty to help restore and maintain adequate stream flows. In effect, the bill elevates utility water use over stream flow protections, which are needed to restore fish runs and water quality. A provision that would have tied new municipal water use to stream flow protections was in the version that passed the House in mid-March. This provision was effectively eliminated in negotiations with the Senate.

•Fails to ensure meaningful conservation. The version that passed the House in mid-March contained a provision that would have ensured maintaining or improving conservation performance. This was eliminated in negotiations with the Senate. §