The following article is a transcript from the podcast "Water Law 101." Listen to the original audio.
Intro: I’m here with Mike Gallagher from Ecology’s Water Resources Program. And we’re going to continue our talk about water rights. Before we get back into that I’d like to talk to Mike a little bit about his background. Mike, you’re a geologist by trade, is that correct?
Mike: Yeah, primarily a Hydrogeologist which is a Groundwater Geologist. And a bit of my background, I have a Bachelor’s in Geology from University of Puget Sound and then went to graduate school, again specializing in Groundwater Geology, at Western Michigan University in Kalamazoo, Michigan and then soon after that I was hired here by Ecology and have been here ever since.
Q: And I’ve heard you quote Mark Twain several times saying, “whiskey is for drinking and water is for fighting,” and that takes us to today’s subject which is how do you get a water right, because it seems complicated and in many cases super difficult. Is this the case? How do you get a water right?
A: Well, it is complicated and it is getting harder and harder for applicants to obtain water rights, not just in Washington state, but throughout the west. Mainly because in the Western United States water is divvied up under what’s called the prior appropriation doctrine, “first in time first in right,” so those that already have a water right, as long as they’ve continuously beneficially used that water, which most of them have and will continue to do, they’ve already received their slice of the pie. We can’t make the pie bigger for water. It’s what we have. So (for) new applicants that slice is maybe not always smaller, but it’s harder and more costly to get.
On the surface, how do you get a water right? It’s really answering four questions. It’s called the four-part test. Will the proposed use be beneficial? That’s easy. There are very few non-beneficial uses of water. Is the water available physically and legally? That’s starting to go to where this whole process can be very expensive for the applicant, to determine that, the answer to that question. In most cases, the water is physically there. The groundwater’s there, it’s pretty hard to get a surface water right anymore in most of Washington. But there’s parts, like the lower Columbia River itself, where it would be pretty straightforward to get a water right because there’s no impairment in the lower Columbia River out of the river itself because it’s under tidal influence all the way to Bonneville Dam and there’s a lot of water down there. Then you get to legally available and then it’s a whole different question because that’s where that prior appropriation doctrine comes in. Is it legally available for you as being junior to everyone else nearby you that already has a water right? You can’t take their water to get your water right and so it might be physically there, but it might not be legally there. And it takes a lot of effort, a lot of resources, and money, somebody’s got to pay money to hire the experts to demonstrate that the water is both physically and legally available.
The third question, will existing water users, those senior users, be impaired? And one group of senior water users that isn’t often thought of outside of Ecology is streams themselves that have an instream flow regulation. If they have an instream flow regulation, a minimum flow established in rule, that in effect itself is a water right. And you cannot take any of that water from pumping a well or directly out of the stream without some form of water for water offset, or what we call mitigation. So, the impairment test is another difficult question to answer in the affirmative, in the effort to obtain a water right.
And then the final question under the four part test is, is the proposed use not detrimental to public interest or public welfare? Well, beneficial use of water for residential purposes, municipal supply purposes, industrial commercial purposes, agricultural purposes, are all considered beneficial uses and would generally be considered in the public interest. However, over the past few years, more and more parties out there are challenging that public interest test in terms of the use of water. And so, I think that’s still an unanswered question but what I will say is that public interest test is likely moving from being an easy answer to a more difficult answer in some of our watersheds here in Washington state.
Q: Why is it so hard to get a water right?
A: So, let’s assume a water right application for a groundwater withdrawal at 25 gallons a minute at 50 acre-feet a year for a 125 medium lot residential development on 35 acres of raw land in a watershed with an extreme flow regulation, so you come to Ecology, you have this 35 acre plot you want to build homes on it and you're starting to get approval from the county in terms of the land use part of it, you know, that’s a whole other issue, but to make progress on that, you need legal water to supply these eventual homes. And so you come to us with an application requesting 50 acre-feet a year and 25 gallons a minute for a single well. You plan to install a Group A water system and you’ll be working with Department of Health on that. Let’s say this proposed well location is 800 feet from a small stream that’s a tributary to a larger stream. That larger stream has a regulatory established minimum flow regulation that ranges from a low of 10 cubic feet per second in June, July, August, and September to a high, of let’s say, 45 cubic feet per second in March and April and different numbers in between. So it’s that kind of a water right, right there for that stream. And your well is 800 feet away. You file your application, you request 25 gallons a minute, 50 acre-feet a year and we start looking at the four-part test:
I mentioned there’s generally two easy questions, two hard ones, will the water be put to beneficial use? That’s easy, you're requesting multiple domestic or perhaps a municipal supply purpose. Those are both beneficial under state law. Is the proposed development in the public interest? Well, residential housing and the use of waters of the state or residential domestic supply are generally supported as meeting the public interest test.
Next, we come to the hard questions. Will this proposed water right impair any old or existing or more senior water rights? There could be farms around this residential development or other water uses. Maybe there’s another residential development nearby that already has a water right. So the applicant has to demonstrate that their proposed use of water will not impair those senior water rights. The stream that we’re talking about has an instream flow regulation. So the well, even though it’s 800 feet away from the stream, due to what’s called hydraulic connectivity (surface water and groundwater are connected) it’s likely that the pumping of that well at 25 gallons a minute will have some impact on the flow of that stream 800 feet away, and likely that will need to be mitigated for. To do that, the applicant, or somebody, is going to have to pay a consultant to do the necessary studies and perhaps groundwater modeling, to demonstrate or show us what the projected modeled impact of flow will be to that stream. The burden is on the applicant to come up with a way to replace that impact with some form of water, whether it’s deeper water from the well itself that’s then injected near the stream to help restore that flow or whether it’s a purchase of an older water right, (or) part of an older water right, that’s then no longer used to offset that water right would have to be in the basin. But, because of that well-established hydrogeological fact that surface water and ground water are interconnected, a term known as hydraulic continuity, it generally means that there exists this connection between groundwater and surface water. So, that’s the third question.
The fourth question, is water available physically and legally? So (it’s) physically, at my 38, 35 acre raw land location. Next question, well how deep is it to the water table? How deep is it to the aquifer, what’s the direction of groundwater movement? What’s the proximity on any nearby sources of potential contamination, such as septic drain fields, manure lagoons, a gas station with an unknown leaking underground storage tank? These are all examples of nearby sources that could be impacting the water supply, or the aquifer itself, with perhaps contamination. Are there other water quality issues with this aquifer that the applicant needs to be concerned about? Would it be better for the applicant to drill a shallower well or a deeper well? A deeper well which often has a confining layer on top of it and is a deeper aquifer can sometimes have better water quality standards, but sometimes it might have some naturally occurring issues like high manganese or high iron levels in the groundwater that needs to be treated at the surface. So all of those questions are part of this application process that really need to be answered and they’re not just really available straightforward answers, but require a fair amount of research and looking into. Now, one way to start for the applicant is to look at well logs of other water wells near your property, on Ecology’s well log database to get a sense of what are some of the aquifers in the area? Is there a second or third aquifer that might be better to be tapped, maybe that aquifer’s more productive than the shallow aquifer. Rather than just, as a cost-saving measure, I’m just going to go to the first aquifer because it’s cheaper to drill a well and get to the first aquifer than it is to the second aquifer.
So, to continue to determine the physical availability of the water, you have to hire a driller to put in the well and then you have to get what we call a preliminary permit to test that well and do the necessary aquifer testing, what we call aquifer property testing of that well. And we give preliminary permits for applicants all the time to do this and we give them up to three years to fulfill the preliminary permit because it takes time to do this work after the well’s drilled. You’ve got to line up a consultant to do that. A consultant has to design the work that they need to do. Basically, they have to calculate, based on what’s called a 24 to perhaps a 72-hour pumping test, the distance and time drawdown response to the pumped or producing aquifer, aquifer transmissivity, the aquifer storage coefficient, the aquifer specific yield, any leakage of overlying aquitards or confining layers, any effects on nearby surface water. All of that is done through standard peer-reviewed hydro geologically accepted, industry accepted equations and calculations and modeling. But it’s not free to do. Somebody’s got to pay somebody to do it and that takes time and resources. That’s another reason why it’s costly this day and age in Washington to get a water right.
After that final aquifer test report is submitted to us, along with the well construction report of the well and the lithologic description of the geologic units below ground as based on the drilling of that well, the depth of the pump intake, the elevation of the well, the different testing information, the duration of the pumping and recovery, maps, cross-sections, all of that in raw data and lab test reports come to us to fulfill that preliminary permit. Either Ecology looks at that, then drafts what’s called a report of examination, or the applicant pays a consultant to continue that work and draft a report of examination, which is an extensive form that’s filled out and it becomes part of the record of this water right. And that’s really where we determine if the four-part test is met, especially that legal availability of water. In that report of examination, we document who is the water for, the priority date, the requested quantity instantaneous or the pumping rate, the annual quantity, purpose of use, period of use, the place use, and the legal description of where that water is used. As part of that, the applicant has to file public notice two weeks, two consecutive weeks, in a newspaper of general circulation where the water’s to be stored or withdrawn, or diverted and used. The applicant has to put a classified ad, in that newspaper for two consecutive weeks and document back to us that they’ve done so. It’s an opportunity for any nearby water users or concerned citizens to file protests or concerns to Ecology about that proposed use. Additionally, the applicant has to ensure that the State Environmental Policy Act is complied with. In most cases if the water right applications are below one cubic foot per second if it’s surface water and 2,250 if it’s groundwater and therefore, for that use is exempt of the SEPA checklist. But for above that, it’s required.
Another step is the applicant or their consultant has to consult with the Department of Fish and Wildlife to ensure water in nearby streams with instream flow rules is protected or protective enough for Fish and Wildlife’s concern for salmonid species and other fish species. And when you visualize fish, don’t just visualize the big fish that you see in a stream that are, you know, 16, 18 inches along. (Also visualize) the little tiny fingerling fish that are recently hatched that work their way downstream into the ocean that hopefully will come back in two to four years, to be the big fish to spawn again. Fish and wildlife look at that whole lifecycle.
A report of examination also looks at water availability in nearby wells, the nearby water rights within roughly a one-mile radius of this application, and claims. We fold in the pump test and aquifer results. We do an analysis of the public interest. We look at impairment considerations of other water rights. We analyze the beneficial use, physical and legal availability (to ensure) that there’s no impairment, the public interest is met, the, (and) any impairment will be mitigated. All of that is put into this report of examination document where at the end of the day, we then make the decision to approve or deny the application. Either case, it’s posted for 30 days public comment and people can file a protest and pay a fee to have their protest addressed in the final report of examination. And, let’s say there’s no protest, but we issue the final report of examination, that is posted again for another thirty days of appeal. Basically, at this point, when we’ve signed a final report of examination we, the Department of Ecology, are saying, we are defending this decision if it’s appealed, whether it’s a denial or approval to the next level. Because if it is appealed, it can be appealed to the Pollution Control Hearings Board and it can go potentially higher in the court system in the state. So, in a nutshell, that is an explanation…
Q: That was a nutshell?
A: That’s a nutshell. A big nutshell. That’s an explanation of why it is so hard, so difficult
Q: That sounds like it takes years.
A: It can take years, it could take a long time.
Q: So, once you do get a water right, after you’ve gone through that process, what do you get with that water right? What’s the payoff for all this time and money?
A: So, once you get that water right, you are entitled to a source of water, like a creek or an aquifer depending on what it is that you applied for, at a certain instantaneous quantity45 gallons a minute, point one cubic feet per second.
For let’s say agricultural irrigation purposes from May 1 to September 30, at your legal description of your farm or the property you intend to irrigate, you have that use for those purposes, at the exclusion of everyone else. That is your exclusive legal use, a resource owned in common by the people of Washington state, given to you under a permit and eventually a certificate that you have exclusive to everyone else. And that quantity of water, that exclusion area permit is free of charge. There’s no charge for that water except the cost you have to pay to convey it from the river or pump it out of the ground. You have that use forever as long as you continue to beneficially use it under those conditions from the source at how much, for that purpose or purposes, at that place, whether it’s year round or it’s a season, like an irrigation season, exclusive of everyone else. So that is what a water right gives you.
Thanks, Mike. That’s all the time we have for this episode of Water Law 101. Join us next month and we’ll continue our discussion of water management in Washington.