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.

High Country News Classifieds
  • WATER POLICY ANALYST WITH WRA (BOULDER)
    Position Summary: Western Resource Advocates seeks a passionate Water Policy Analyst with knowledge of western water issues to join our Healthy Rivers Team to strengthen...
  • GILA NATIONAL FOREST
    9+ acre inholding. Passive solar strawbale off the grid and next to the Continental Divide Trail in ponderosa pine/doug fir forest at 7400.
  • HIRING BEARS EARS EDUCATION CENTER DIRECTOR
    Conservation nonprofit Friends of Cedar Mesa in Bluff, Utah is hiring an Education Center Director to oversee the operation of the Bears Ears Education Center....
  • PROGRAM MANAGER, SUSTAINING FLOWS
    Friends of the Verde River, Cottonwood, AZ. Apply at https://verderiver.org/employment-opportunities/
  • PROGRAM ASSOCIATE - VERDE RIVER EXCHANGE
    Verde River Exchange - Friends of the Verde River, Cottonwood, AZ. Apply at https://verderiver.org/employment-opportunities/
  • CODE COMPLIANCE OFFICER
    Teton County Planning & Building is hiring! Our ideal candidate is a team-player, a problem-solver, pays attention to detail, and can clearly communicate technical material...
  • ARCHITECTURE DRAFTSPERSON/PROJECT MANAGER
    Studio Architects is seeking a full time Architectural drafts-person/project manager with1-3 years of experience to join our firm. At Studio Architects our mission is to...
  • ASSISTANT MANAGER/TRAINEE, COLORADO RANCH
    needed for 16,000+ acre conservation property in south central Colorado. Qualified candidate would have experience working on a ranch or wilderness property, general forestry/fire management...
  • FARM HAND &/OR NANNY IN ESCALANTE
    Nanny for 18-mnth-old. Yearly salary, vacation, health insurance. Spanish/other foreign-language native spkr prefrrd.
  • EXECUTIVE DIRECTOR
    Washington Association of Land Trusts seeks an ED to build on WALTs significant success & to lead the association to new levels of achievement. See...
  • BEAUTIFUL CUSTOM STRAWBALE HOME IN WESTERN COLORADO!
    Secluded, energy efficient Southwestern home on 40 wooded acres. Broker - Rand Porter - United Country Real Colorado Properties. 970-261-1248, $425K
  • FORMER RETREAT CENTER/CONSERVATION PROPERTY FOR SALE
    57 acres in Skull Valley, AZ, 17 miles from Prescott, year-round creek, swimming holes, secluded canyon, hiking/meditation trails, oaks, pines, garden, greenhouse. House, office building,...
  • ARIZONA PUBLIC LANDS ORGANIZER
    Title: Public Lands Organizer About the Arizona Wildlife Federation (AWF) The AWF is a non-profit organization dedicated to educating, inspiring, and assisting individuals and organizations...
  • HISTORIC RANCH HOME W/ 20 ACRES
    Historic 1893 Ranch Headquarters. 4 Bdrm, 3.5 Ba, 4000 ft2. Remodeled 2002. Includes 2 studio apts, stables, arena, workshop, 5 RV hookups. Chirachua & Peloncillo...
  • VICE PRESIDENT OF RETAIL OPERATIONS
    The Vice President of Retail Operations will provide overall leadership and accountability for purchasing, product development, merchandising planning, visual merchandising, retail operational excellence, oversight and...
  • ASSOCIATE DIRECTOR
    Grand Staircase Escalante Partners seeks an experienced fundraiser with excellent communication and organizational skills.
  • PROGRAM MANAGER
    position in Phoenix with the Babbitt Center for Land and Water Policy.
  • ROADS END CABIN NEAR YELLOWSTONE
    Vaulted ceilings, two fireplaces, two bedrooms, loft, jetted tub, wifi. Forest, mountain views. Wildlife. [email protected]
  • ACCOUNTING CLERK
    Our director is seeking to employ the services of an Accounting Clerk to assist with various accounting and administrative tasks. This is a great opportunity...
  • EXECUTIVE DIRECTOR, COMMUNITY RADIO PROJECT
    Community Radio Project, Cortez, CO (KSJD & the Sunflower Theatre). Visit ksjd.org and click on the Executive Director search link. CRP is an EOE.