It's fall in the Pacific Northwest, and the winter rains have already begun. For the next seven months or so, storms will pummel the state of Washington, filling every rivulet and river in the state and chasing people to stores in search of umbrellas and galoshes.
But while most people
worry about coping with gray soggy days, attorney Rachael Paschal
will be in court arguing that there's not enough
"When rivers around the state are flooding
in the winter, people laugh at me," says Paschal. "They tell me,
"What do you mean there's not enough water?" But we have a drought
cycle in this state."
During the dry summer
months, Paschal says, farmers, millions of new residents, and
wildlife all compete for slices of a water-supply pie that has
already been divvied up. Many of the state's waterways slow to a
trickle during the summer, she says, killing off fish and other
The Center for Environmental Law
and Policy, which Paschal represents, and several Indian tribes
have been urging the state to stop giving out new water rights and
to establish minimum instream flows.
message got through last spring, when the Department of Ecology
denied more than 250 applications in both rural and urban basins
throughout the state. The majority of the rejected permits were for
utilities, public water purveyors, subdivision developments or golf
courses located in the rain belt of the west side of the
The department rejected most of those
applications to protect instream flows, says Ken Slattery, the
agency's senior analyst for water resources. Groundwater and
surface waters are connected, he says, and the agency recognized
that pumping reduces the flows of surface waters.
Disgruntled water applicants appealed to the
Washington State Pollution Control Hearings Board, arguing that no
proof existed to show that groundwater pumping depleted rivers and
streams. The Center for Environmental Law and Policy, and the
Tulalip Indian Tribe contested some of the approved
In a groundbreaking ruling July 16, the
board upheld the Department of Ecology's right to reject permit
applications to protect minimum instream flows. The ruling does not
prevent the individual cases from going before the board, but it
strengthens the hand of the state. Some of the rejected applicants
have already dropped their cases, while others have vowed to fight
to the end. The Center for Environmental Law and Policy plans to
intervene in every case, says Paschal.
its ruling, the board invoked the public trust doctrine, which
holds that the public has a right to keep water in lakes and
rivers, above and beyond any senior rights held by private
interests. The most famous public trust case was the 1983 Mono Lake
decision, in which the city of Los Angeles was required to leave
water in several creeks feeding Mono Lake.
been looking at California for a decade, hoping to get the public
trust doctrine applied in Washington," says Paschal. "As of July
16, we got it."
The board's ruling also rejected
the appellants' contention that groundwater rights could only be
denied if the state could demonstrate that pumping would have a
measurable effect on stream flows. "Hydraulic continuity," it
wrote, "is a scientific fact. (The Department of) Ecology may deny
a groundwater application if necessary to protect minimum instream
flows in a surface water with which that groundwater is in
Although the board's
ruling reaffirms the legal basis for instream flows, establishing
and enforcing them has always been a problem. Department of Ecology
officials say that only 20 of Washington's 62 basins have instream
flows set for them, and most were set over a decade
A huge obstacle is money. The state
legislature has slashed the department's water resources budget
over the past three years, causing the water permitting staff to
fall from 61 to 21 people. As a result, there's a hefty backlog of
5,000 water permit applications.
flows program has other problems, says Paschal. Sometimes, junior
water rights holders will continue to siphon off water from a
stream after flows have already dipped below the minimum, she says.
And the flows themselves, especially those set in the "70s using
outdated scientific methods, may not be adequate to protect fish
even if they were enforced, Paschal points
Still, not giving out more permits where
there is no water is an important first step, and, according to
Paschal, heralds the beginning of a new era in water management in
Washington. From now on the game is reallocation, she says, as a
finite supply of water moves from farms to
"When we need new water, we are not
likely to get it from the river or an aquifer," she says, "but from
people who have become more efficient in their existing water use
or through market transactions."
information, contact the Center for Environmental Law and Policy at
2366 Eastlake, Suite 415, Seattle, WA 98102 (206/328-6422), e-mail
email@example.com; or the Pollution Control Hearings Board at P.O.
Box 409-03, Lacey, WA 98504-0903
John Rosapepe lives
in the Pacific Northwest.