Turning Off the Tap
Rachael Paschal, Executive Director
Center for Environmental Law and Policy, Seattle
This article appeared in Seattle-Post Intelligencer, March 3, 1996 and is reproduced here by permission of the author, ©1996 Rachael Paschal.
In early 1994 Mary Riveland, the director of the Washington Department of Ecology, was faced with a growing crisis.
Unchecked population growth was creating a huge demand for more water, and pending applications for new water rights had risen into the thousands. At the same time, growing concern for the health of the state's salmon fisheries indicated that precious little water was left for out-of-stream uses.
The agency was under attack from the Legislature as well as interest groups from the agricultural, industrial and municipal sectors. Environmental and fish advocates, along with regional Indian tribes, weren't any happier.
Riveland crafted a solution by assigning one of her top managers to run the beleaguered Division of Water Resources. Carol Fleskes didn't know much about water, but she'd had spectacular success in the difficult task of creating the state's Model Toxics program.
Fleskes took control of a program that performs a variety of tasks, ranging from inspecting dams for safety to regulating agricultural water users. But its primary job is to manage the state's waters, including protecting in-stream flows, while simultaneously processing applications for water rights.
To issue a water right, the state must first determine whether water is physically available from the stream or aquifer proposed for use. Traditionally, this test had involved an antiquated and inefficient case-by-case investigation.
Confronted with a backlog of nearly 5,000 applications, Fleskes made some fundamental changes. She instituted an approach to permitting that was designed to determine water availability on a watershed-wide basis, taking into account all of the competing claims on the resource.
Fleskes first asked each of her four regional offices to identify a watershed for immediate study. These four river basins - the Tucannon in southeast Washington, the Entiat in the northeast Cascades, the Upper Chehalis south of Olympia and the Green-Duwamish between Seattle and Tacoma - each suffered from compelling problems, including inadequate flows for fish, degraded water quality and significant demands for new water supply. The regional offices then formulated water availability studies, dubbed "initial watershed assessments."
For the first time, water supply was surveyed from both hydrologic and legal perspectives. Because new research was not affordable, Ecology gathered existing data about the amount of water in each basin, and then compared that information with registered water rights and other claims for use. The watershed assessments were quite general in the information they provided. Nonetheless, they represented a far more rational method for determining water availability than had been used.
Just as the watershed assessment project was getting under way, the 1994 Legislature slashed Ecology's budget, and more than 40 percent of the water resources staff was laid off.
This extraordinarily short-sighted move only strengthened Fleskes' resolve. Gov. Mike Lowry, realizing the pragmatism of the new watershed orientation, asked Ecology, supplied with a $500,000 allocation from the state emergency fund, to conduct studies in as many more river basins as affordable. Another 12 assessments were commissioned, this time by partnership between Ecology and private consulting firms. The 16 assessments were published throughout the spring and summer of 1995.
Last month this new approach to business finally paid off. Making headway on its backlog, Ecology issued about 500 new water right decisions in 13 watersheds around the state.
Overall, approvals and denials were about equal. In its most difficult decisions, Ecology turned down some very large municipal requests, including several that had already drilled unauthorized wells. (Interestingly, several golf courses received new water rights, including the Seattle Golf Club and Golf Northwest, Inc. on the west side and Kahler Glen east of Stevens Pass.) In many denials, the department suggested alternative sources of water, including that favorite panacea - drill a deeper well.
An analysis of these decisions, focusing on four themes, provides an interesting picture of the current state of water politics in Washington.
Hydraulic Continuity
Hydraulic continuity refers to the connection between aquifers and surface waters. This connection is critical because in late summer, when rain is scarce and the snow pack has melted off, ground water becomes the primary source feeding our rivers and streams. This phenomenon has tremendous implications for water management: a decision whether to allow a well to be drilled not only must consider water table levels but must also assess the impacts to surface water flows. Because of hydraulic continuity, the state water code requires that ground and surface water rights be integrated.
The Good
Ecology continues to expand its recognition of the connection between surface and ground waters. Almost all of the permit denials statewide relied on this connection as a basis to reject proposed ground water use because of adverse impacts to in-stream flows. Puget Sound rivers, including the Snohomish, Green and Puyallup, all experience depleted flows in late summer, resulting in serious water quality problems and degraded fish habitat. As a consequence, Ecology denied almost all ground water applications in these basins, unless they proposed withdrawing water from deep aquifers that discharge to Puget Sound rather than the rivers.
In the Spokane area, many new wells were rejected because of their impacts on the Little Spokane River. Unfortunately, these connections were not recognized everywhere in the state.
The Bad
The Wenatchee Basin is home to some of the most important remaining salmon runs in eastern Washington but experiences inadequate stream flows on an average of 69 days a year. Like many eastern Cascade river valleys, the hydrology of the basin is like a gravel-filled bathtub, and ground water flows directly to the river. Even so, more ground and surface water permits were issued in this basin than anywhere else in the state.
Many approvals will allow water use during the early spring or late fall and winter - times of year when stream flows are not yet at risk. These permits warn that water will not be available in the late summer, and that the new water right will be interrupted, perhaps as often as every other year, when the river falls below minimum flows specified by law.
The problem stems from the unwillingness of irrigators to cut off their water use in late summer. Ecology's enforcement capability is severely compromised due to budgetary reasons and issuance of these "interruptible" permits, based on unrealistic assumptions about enforcement, that can be expected to further deplete stream flows.
Most of the water rights issued in the Wenatchee basin were for small quantities, but Ecology's failure to look at the accumulated impacts of many small rights is a disappointment. Death by papercut is death nonetheless.
The Ugly
As a part of the effort to save the Columbia and Snake River salmon runs, Washington has imposed a moratorium on the issuance of new water rights out of the two rivers. This ban also applies to ground water rights, if the connection between the aquifer and the rivers is "direct."
The basalt aquifer system, which underlies all southeast Washington, is composed of thick layers of lava flows that can be seen above ground along the highway in the Columbia Gorge. Ground water flowing through these aquifers supplies base flow to the Columbia, Snake, Yakima and many smaller rivers in the area, including the Walla Walla.
The connectivity between these aquifers and local river systems is documented in the scientific literature. In the Sinking Creek area in Lincoln County, Ecology itself demonstrated that pumping from the basalts depleted creek flow. Even the deeper layers in this sequence discharge to major surface waters, particularly the Columbia River.
Despite these studies, Ecology has made a decision that the basalt aquifers beneath the Columbia plateau are not directly connected to instream flows, and accordingly, are available as a source of water for the Walla Walla basin.
These ground water permits will allow development of major new irrigation acreage, and add up to huge quantities of water. Ecology is even encouraging applicants who are turned down for shallow aquifer water rights to re-apply for deeper basalt wells. Because the basalt aquifers feed into the Columbia/Snake system, the issuance of ground water rights puts the flow in these rivers at risk.
Given the extraordinary salmon recovery efforts under way, it is hard to imagine why the state would act against its own interests and continue to issue water rights that will only exacerbate the problem.
Efficiency
While in many watersheds, new water simply doesn't exist, an alternate supply can be found through water conservation. Currently, domestic and agricultural use of water tends to be very wasteful, and Ecology is beginning to impose limits on new permits to force improved efficiencies.
The Good
A sample paragraph from a recent decision illustrates the increasingly stringent efficiency requirements Ecology is imposing on new water users:
"The efficient use of water is a goal mandated in the Water Code. It is in the best interest of the state for irrigators to pursue efficient water use. When it is reasonable, the irrigation system shall be converted to a more water efficient system, such as a micro-drip irrigation system."
On the municipal level, an application from the City of Tukwila was denied on the basis that "the city should demonstrate a firm commitment to full utilization of several conservation and reuse options before looking for new water supplies." This big picture approach to conservation is a welcome advance in the state's water management strategy. Maximum efficiency in water use is becoming absolutely critical to the state's ability to meet future demands.
The Bad
How on earth is the state going to enforce these conditions? All agencies with jurisdiction over water supply, including the Departments of Ecology, Health, and Community, Trade & Economic Development, need to establish enforceable rules that define and mandate highly efficient water duties, technologies, rate structures and other standards.
Then, they need to make them stick. Municipalities and irrigation districts must now do conservation planning but have complete discretion over how much money and effort is actually directed to water saving activities. Hence, conservation efforts vary widely. The Tukwila denial should be the standard: no new water rights unless the applicant demonstrates genuine commitment to conservation.
The Public Interest
In addition to the water availability test, a new water right cannot be issued if it would result in harm to the "public interest." But what does this mean?
One way of thinking about this question is to consider common property uses of water, that is, uses that are not protected by private interests. Private users typically extract water from the stream or aquifer and use it for private benefit or profit.
Public uses are harder to protect. For example, maintaining water in the stream for a fishery, or for recreation for hundreds of people, or for sheer aesthetic beauty are interests that are enjoyed by many but which cannot be reduced to a water right.
Perhaps the most valuable public interest is clean water, an interest that rises to the level of absolute necessity.
In years past, the public interest test has been seriously underutilized. The latest round of decisions, however, indicates Ecology's growing recognition of the power and flexibility of the public interest and of its own obligation to protect water as a public resource.
With respect to public water supply, Washington has more small systems than virtually any other state, along with disconcertingly high percentages of contamination. Consolidation of water systems is preferable both in terms of efficiencies in delivery and water quality.
The public interest is an intrinsic part of these problems, and has been a basis for denying some water rights, with Ecology finding that, "It is not in the public interest to allow the proliferation of public water supply systems."
Ecology has also stated that, "Until the applicant has investigated the potential to be provided water from a regional water supplier, it is not in the public interest for Ecology to approve the appropriation request."
The public interest in state waters will only expand as the population increases. This legal test may become the most important question in future allocation decisions.
Public Process and Appeals
A final issue related to the water rights program involves the question of public access to information. The state water code, adopted in 1917, was a very progressive statute for its time. It required that applicants publish notice of their proposed water use in a local newspaper and allowed concerned persons to raise objections. Objectors were usually neighbors, and the purpose of this notice involved the third test for a water right: protection of existing water users who might be adversely affected by issuance of a new water right.
Cut to the 21st century. Because of impacts to fisheries and water quality, the water code now recognizes that there are statewide as well as local interests in how public waters are used. The complexity of modern water rights decisions is reflected in their length. Decisions used to be one paragraph. But the 500 decisions issued last month range from two to five pages each, and include detailed analyses of the four tests. Approvals contain lengthy and important conditions.
Yet, under the current process, there is no way to know what the agency will do before it makes its final decision. Applicants and other interested parties have no avenue to talk with the agency about its decisions before they become final orders.
This process can be contrasted with virtually all other resource management statutes, including the state Environmental Policy Act, which require that a decision be issued in draft and made available for public comment prior to finalization.
As a result, about 100 disappointed applicants have appealed. In the past, Ecology has shown a willingness to settle rather than litigate. Lack of public process means that any settlement negotiations between the appellant and Ecology will take place out of public view.
Improved procedures would not only provide the public access to the agency's work that the law requires, but it might lead to better decisions and quite probably would reduce the number of appeals that the state must routinely defend.
Summing Up
Clearly, Ecology is turning off the tap. The days of simplified hydrologic analysis and unconditional new water rights are gone. Issuance of hundreds of water right denials, based on lack of water availability, represents a significant shift in state water policy. The new watershed approach adopted by Riveland, Fleskes and their hard working staff is a refreshingly rational approach to managing state waters.
Unfortunately, the decision to issue new rights in watersheds that are both hydrologically and legally over-appropriated means that clean water, as well as fish, wildlife, recreation and other public values will suffer.
Water rights are issued in perpetuity, and once development occurs, the opportunities for preserving in-stream flows are reduced accordingly. No single water right will make or break a river's health. But the inexorable issuance of one water right after another adds up, leading to cumulative impacts that are virtually impossible to control after the fact.
State officials predict that 2 million people will move into Washington in the next 20 years. What water will these people drink?
Given limited supplies, we will be making some hard decisions about how to re-allocate the water already in use. Experience here and in other states shows that people are unwilling to face those difficult decisions until it is crystal clear that no new water rights can be obtained.
Ecology must take leadership in honestly assessing and protecting the health of our depleted rivers and aquifers. Failure to do so will lead to a terrible impoverishment: a future without the clean water that supports healthy humans as well as healthy fish and other species that depend on the rivers and streams that so clearly define the geography and the character of life in the Pacific Northwest.
Related Resources
MRSC Index – Water rights, water permits