This is the third in a series of posts about replying to the assumption by Lacey’s city manager Greg Cuoio that mitigation is a good way to provide more water for the city of Lacey. You can read all the posts here.
The concept of mitigation has commonly been used to address environmental impacts, growing primarily out of the efforts to achieve no net loss of wetlands over the last few decades. I’ll leave you to your own conclusions about how successful that has been.
However, there is a substantial body of information to guide mitigation decisions by defining the functions, quality and amounts of resources that are impacted. Due to uncertainty of success, design and construction variability, our lack of understanding about recreating whole ecosystem processes, the precautionary principle, and factors that are simply beyond our control (identifiable but not predictable: we know we will have earthquakes that result in subsidence, but we do not know when) we have developed numerous protocols for how to mitigate wetlands.
Mitigation generally includes a sequence of steps that attempt to lessen an impact.
- First, avoid the impact altogether by not taking a certain action.
- Second, minimize the impact by limiting the degree or magnitude of the action and its implementation.
- Third, rectify the impact by repairing, rehabilitating, or restoring the impacted environment.
- Fourth, reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action.
- And finally, compensate for the impact by replacing or providing substitute resources or environments.
Unfortunately, many projects simply jump to this last step and try to substitute something that is politically, socially, environmentally, and maybe scientifically palatable. We have even come to creating mitigation in advance, mitigation banks, because we know we are going to accept some type of compensation, possibly only partially related to the type of impact that occurs and often in an entirely different location than the impact.
Even though we go through these gyrations as to how to mitigate, to lessen the impact, there are still substantial volumes of rules and practices, and theories as to how to make it work for wetlands. Conferences have been held, books have been written, lawsuits have been litigated; there is a significant amount of information and guidance for proponents, regulators, and interested parties to call upon to affect an acceptable mitigation out come.
So, when you transport the mitigation principle to water rights, you might think there is some commensurate level of guidance as to how to make it work, right? You would be completely wrong. There is none, nada, zero, zip.
The Department of Ecology, the agency charged with overseeing water rights in this state, has no formal guidance to authorize mitigation. Yet, these days, they routinely consider mitigation for water rights impacts because it is the only mechanism that provides for them the ability to keep issuing water rights, even though no water exists to support them. All the water in western Washington is essentially spoken for, divided up between the owners and the users such that there is no reserve, no excess water.
In many cases, streams and rivers are over appropriated, that is, more water rights have been issued by the state than practically exists in the stream channel. If everyone used their water right at the same time they would dry up the channel. This has led to the concept of senior water rights: first in time, first in right. The older your right is the better your guarantee to actually get water, while junior users may be shut off to protect the senior rights.
In case you have not considered it, the Tribes hold the most senior water rights. They were here first and they never gave their water rights away. In fact, the Tribes reserved their rights through the series of treaties between the Tribes and the United States government long before Washington was even a state.
So when all the water has already been appropriated and basins have been closed to further appropriation, what is a regulator to do when a new application comes along asking for more water? For some time Ecology did nothing, resulting in a huge backlog of water right applications. They could have simply said no, the well is dry (choose your own metaphor).
But fearing the political backlash of an apparently irrational public, they have fiddled around trying to get more water out of the proverbial rock. Their current favorite accounting trick is to apply the concept of mitigation to water. First, avoid the impact, right? Well that one is out. And so on it goes until they get to compensatory mitigation, substituting an action to offset the impact. But they have no rules! Look up mitigation in the state water code; you won’t find it. Ask Ecology whether they have any adopted rules or guidance for what is acceptable mitigation for water rights. They will recite some party line about their authority, but the simple answer is no. They have no rules. It makes for an interesting game when there are no rules and the decision maker is an enabler.
How do you mitigate for taking water out of a stream? Water creates instream habitat. It is the medium in which fish live. You dry up the stream and you have no fish. Once those fish are extirpated, their genetic integrity is gone, possibly forever. How do you compensate for that loss? Have you ever looked at Woodland Creek during the summer where substantial reaches dry up? Do you honestly believe that is normal? There are some small streams around Puget Sound that do run dry in the Mediterranean summer we enjoy. But Woodland Creek that drains several lakes that are fed by upwelling groundwater? A more reasonable conclusion is that numerous human caused activities, like wells sucking water out of the aquifer and impervious surface short-circuiting the hydrological system have severely impacted Woodland Creek.
The Squaxin Island Tribe has proposed to Ecology that they write rules for how they handle mitigation decisions in water rights determinations. We have offered to help. They have declined our overtures. We have pursued litigation, appealing water right decisions, in order to build case law around mitigation determinations. In short, we have been fighting this beast because the decisions to keep issuing new water rights where no water exists are fundamentally nonsensical. Given the Tribe’s well established positions on the matter and the nature of the dialogue with Ecology and the local municipalities including Lacey, no one with a reasonable understanding of what is going on could conclude that “complex water rights issues smooth out when cooperation is involve.”