Water, water everywhere and not a drop to adjudicate

  • Rachael Paschal on Washington's Icicle River

    John Rosapepe

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 water.

"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 aquatic life.

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.

Their 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 Cascades.

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 permits.

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.

In making 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.

"We've 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 hydraulic continuity."

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 ago.

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.

The instream 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 out.

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 cities.

"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."

For more information, contact the Center for Environmental Law and Policy at 2366 Eastlake, Suite 415, Seattle, WA 98102 (206/328-6422), e-mail [email protected]; or the Pollution Control Hearings Board at P.O. Box 409-03, Lacey, WA 98504-0903 (360/459-6327).

John Rosapepe lives in the Pacific Northwest.

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