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Agreement on Water Rights is Elusive |
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Written On: November/December 2005 |
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Written By: by Paul Schlienz |
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Water is Washington’s lifeblood. Because it is so essential to so many users, it is also the state’s most fought-over resource.
Nowhere in Washington is the value of water more apparent than in the vast reaches of central and eastern Washington, where rainfall is low and desert vegetation, such as sage, have predominated for millennia. The rain shadow east of the Cascades was, however, a unique desert. Unlike such arid regions as the Mojave or the Sahara, this desert possessed many rivers, all part of the enormous Columbia watershed. The potential to turn the dry Columbia Basin into a garden was there from the beginning.
The indigenous tribes who were the region’s only human inhabitants for many centuries knew the value of the rivers and the spectacular salmon runs that provided them with a staple of their diet and an important aspect of their cultures. However, as sacred as the salmon was to the tribes, the water that made the salmon possible was even more revered. As the Umatilla tribe still believes, water is the first of the sacred foods, while salmon is the second.
As settlers trickled into the region in the late 19th century, irrigation projects began to appear as farmers discovered that the land was good for crops ranging from apples, to grapes, to hops, to corn, to wheat, to beets, and a cornucopia of other agricultural products.
During the 1930s and 1940s, the federal government began an ambitious program to build hydroelectric dams on the Columbia and Snake rivers. While the dams, including the much celebrated Grand Coulee Dam, were primarily built to generate electrical power, they had the side effect of turning the once wild rivers into a series of placid lakes, full of fresh water and ideal for irrigating the dry land.
Large-scale irrigation schemes, such as the Columbia Basin Project, which was responsible for watering an enormous area, including parts of Adams, Douglas, Franklin, Grant, Lincoln and Walla Walla counties, took shape during the post-World War II era.
Although the dams certainly had an effect on the salmon populations of the rivers, a system of fish ladders was devised to preserve salmon runs. In addition, hatcheries were built in order to preserve salmon stocks whose runs had been blocked by such dams as the Grand Coulee, where building a fish ladder was impossible.
Washington’s water thus has many users—agriculture, hydroelectric power, industries, municipalities, navigation and fisheries. Thus it was probably unavoidable that conflict would arise over how best to use and allocate such an essential, but finite resource.
Use It or Lose It
Washingtonians, like most Westerners, have fought over water rights since territorial days. The battles continue to this very day, and solutions that satisfy all parties have been frustratingly elusive.
Washington’s water allocation system is built on principles similar to laws that govern mining claims. Much like a miner who is first to stake a claim, the first user of a source of water has seniority in using as much water as needed, up to the limit of the right. Junior users may also access the amount of water allotted under their rights although the more junior a user, the less likely he or she will be able to access the maximum allotment of water.
In order to discourage water speculation and hoarding, a water right only remains valid if the right holder uses the water. If the entire right is unused for five years, it is considered abandoned and will be re-allotted to junior right holders.
In addition, water right holders must put their allotment to the beneficial use specified in the original right. If a right holder wants to put the water to a different use or make it available to another party, this must be approved by the state.
If a farm is within an irrigation district, then the district holds the permits for its members. If not, a water right holder is within the state allocation system based on who is first in line.
For many years, the state’s permitting system worked fairly smoothly. However, beginning in the 1970s, increasing emphasis was placed on the need for rivers to have sufficient water to sustain the ancient salmon runs. Elements of the environmental movement viewed the dams and the use of water by agriculture as detrimental to fisheries and tribal fishing rights.
Then in 1994, a bill passed the Legislature that gutted the Dept. of Ecology of its permit writers. No new permits have been written since the bill went into effect.
"The issue is politics, not water," Gary Chandler, AWB’s vice president of government affairs and a Grant County farmer, observed. "The battle is over how much water there is for fish, but in the Columbia River, only three percent of the water is allocated for agriculture. There is plenty of water for power and fish."
Water policies are frequently confusing and contradictory. Ironically, while the state policy calls for water conservation, its "use it or lose it" water relinquishment policy is discouraging water users from conserving water for fear of losing their rights if they do not use their full allotments.
Increasingly, there are calls for the state to end "use it or lose it."
"You should be rewarded a credit for efficient use of water instead of having your water allocation reduced," stated Rep. Dan Newhouse, R-Sunnyside, a Yakima Valley farmer himself. "There are more efficient methods that people could be using but for fear of losing that water right for non-use. It’s counterproductive."
Property Right or Use Right
At the heart of much of the conflict over water rights is a fundamental question: Is a water right a property right or a right to use a publicly held resource?
"Water is a property on a very similar scale as land," Newhouse said. "People utilize that resource according to the ownership of that resource."
Others in the Legislature strongly disagree.
"The way the law works in all western states is that a water right is a right to use water, not a right to own water," Sen. Karen Fraser, D-Olympia, said. "A lot of people don’t understand that so it gives them expectations that are at odds with the law and the way the courts interpret the law."
According to Jamie Morin, attorney with Seattle’s Mentor Law Group, and an expert in water law, a water right is both a property right and a right to use.
"A water right is a legal entitlement," Morin said. "It becomes part of the land title. It transfers with the title to the property upon which it is used. It is a right in perpetuity. It can be severed from the land and sold separately. All of these are attributes of a property right, but it is also a use right since it has to be continuously used."
Since 1994, there has been a virtual stalemate on how to resolve such issues as water relinquishment and the issuance of permits. During the 2005 legislative session, DOE proposed a sweeping piece of legislation, known as the Columbia River Initiative, which would have allowed water use only if there was a net gain in water flows for the Columbia and required an annual payment for use of water, which called into question the very concept of a water right as a property right. DOE even began making rules to implement the Columbia River Initiative before it had even been acted upon by the Legislature.
Facing the opposition of AWB and other groups representing water users, the state backed away from the Columbia River Initiative. The Legislature then authorized a task force to study issues related to water rights and to draft legislation for the 2006 session.
Agreement on these water issues, however, remains elusive, although there are many ideas for reforming the system.
Task force member Rep. Kelli Linville, D-Bellingham, wants to end "use it or lose it" so long as a water right holder registered every use with DOE, detailing what he or she would use in stream or give to a neighbor. Advantages to this approach would be to quickly and easily develop a database on water use since water right holders would no longer have to fear relinquishment when providing honest data on the use of their allotment.
"It would make the state level management much easier," Linville said of her plan. "In addition, it would give people an incentive to conserve water and to be part of the solution when they have low water years."
It remains to be seen if there will be any significant legislation passed on water issues in 2006. Although there have been many bills to reform water policy in the past, they have had little success in the Legislature.
Morin suggests that the only way out of the water rights stalemate will be through compromise.
"Non-water users need to recognize water rights are property rights, while water users need to recognize that some types of water uses need to be mitigated in order to protect environmental values," Morin said.
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