The following article is a transcript from the podcast "Water Law 101." Listen to the original audio.
Intro: This is water law 101. I’m back with Mike Gallagher Southwest Regional manager for Ecology’s Water Resources program. Water Law 101 is meant to be an introductory level discussion of water law in Washington State. But even at the simplest level, managing water rights can be very complicated. Mike, at the heart of your job is really a resource management job. This is really kind of an amazing balancing act that you have to do in order to manage this shared resource throughout the state. Can you kind of give me some details on what it takes to manage our water resources?
Mike: Sure, thanks Jimmy. As I’ve mentioned, water is managed, in the state of Washington, under the prior appropriation doctrine: “first in time first in right”. When we get a water right application we have to balance that application with the existing use of water already in that particular watershed or from that particular aquifer, balanced with, maybe an instream flow regulation, other water uses, the amount of annual rainfall, the amount of flow in that stream that’s based on snowpack or not snowpack and the demand for the water. Primarily our demand and our need for water is highest in the summertime, when the supply is at its lowest. So there’s that balance as well. We have to, when we allocate new water rights, or transfer water rights, look at change applications, we have to balance the public interest with that and not just the public interest, but the environmental balance of that particular watershed. At the same time, our first priority is to protect senior water rights. We have to ensure that those that already have water rights, are going to be protected or that supply is going to be protected in perpetuity. We all share this pie of water, whether it’s us, the fish, the farmers, us the homeowners or people that, you know, live in a house and rely on water for domestic purposes or we come to work and use the water for domestic purposes and you know and personal needs at work, the stores we shop at, you know, to clean out the produce section, you know, that takes water. All of that is a shared resource and that pie doesn’t get bigger. We can’t make the water supply bigger.
All of this takes, as you mentioned Jimmy, it’s a balancing act. Protection of senior water rights, meeting the public interest, meeting the desire of the applicant—and many cases, what can help is ways of conservation, you know, water use efficiency, water reuse, metering that water reuse, mitigating for that water use by returning back to the stream or a water source — what is impaired as a result of that new use, and we have to then, kind of as a sidewinder into that is, our reliance on the sciences of hydrogeology and fish biology. Fish are an essential part of our culture, a part of our livelihood, a part of our resources here in Washington, and our aquifer conditions, you know, knowing the depth of the groundwater, the direction of groundwater flow, the ability of that aquifer to produce water, the intertie of groundwater and surface water, that requires the input of qualified hydrogeologists to help make these decisions to achieve this balancing act of managing water resources in the state.
Q: I noticed another part of this balancing act is that Ecology and Water Resources in particular, aren’t the only ones trying to weigh in on these decisions, I mean you’ve got conservancy boards. You’ve got different sorts of industrial interest, agricultural interest, community interest, tribes. Is part of your job being a lot like a diplomat?
A: Absolutely it’s like being a diplomat. There are competing interests about this water. There are parties that are wanting to protect what we have in the stream. There are parties, especially our Native American tribes here in Washington, that have treaty rights for fish from usual accustomed fishing areas, well those asual custom areas. They need streams full of water so that the fish can move up those streams to spawn and produce new fish that come back to be harvested later on and to continue that fish cycle. Those are protected by treaty rights and they, in terms of prior appropriation doctrine, those rights, even though they’re not quantified, they are senior to everything else, because the tribes have been reliant on those water supplies and unquantified rights since time immemorial.
We have a lot of senior water rights for older agricultural enterprises and farms from the early 1900s that have been in continuous operation both in eastern Washington and western Washington that also rely on that water supply. And so that has to be protected.
And competing with that we have new demands on water here in Washington. We have people moving into Washington. In the course of my career in Ecology, Washington State has gone from being the twentieth most populated state in America, to being the thirteenth. People want to move here for a variety of reasons. Whether it’s economic opportunity, a nice climate, beautiful recreational opportunities of varied geography and topography. All of these play into reasons why people move here. And with that, people are desiring to move here, all of us whether we’re natives or have come from somewhere else, need water. And that trend is going to likely continue for the foreseeable future and we all have to balance that with this pie that we share.
Q: Water pie.
A: Maybe that’s a better way of saying it.
Q: Alright, so tell me about some of the challenges that come with this balancing act.
A: Well, look at our state and we always talk about that there’s an eastern Washington and a western Washington and that’s primarily climate driven. Western Washington is generally wetter and eastern Washington is generally drier. We have two different climates, we have west of the Cascade’s this marine west coast maritime climate. East of the cascades, we have this continental generally semi-arid climate. So that has to be balanced with the water needs, the growing water needs on both sides of the state.
In addition, we have very varied geology, geological conditions. We have this from the last ice age or the last series of ice ages 15,000 years ago and prior, we have this tremendous sandbox, sand and gravel box full of groundwater, in Puget Sound, of aquifers, sand and gravel aquifers that have robust physical supplies of groundwater that have been used and will continue to be used for years. And that’s a wonderful supply of water.
In Eastern Washington we have very vesicular layers of basalt formations that extend for several miles that can result in having very productive wells that when you drive across eastern Washington between Vantage and Spokane on Interstate 90, you see those large crop circle irrigation sprinklers. They’re pumping hundreds, in cases, a few thousand gallons a minute out of the ground to feed the water for that crop circle. That comes from a several hundred feet deep vesicular layer of basalt that’s just full of groundwater. So you have that differing geological condition, but you have other geological conditions, I’ll pick an example here locally in the Olympia area just west of Olympia, there’s a lake that’s called Summit Lake. You used to be able to apply for a water right to take water out of the lake for your domestic supply. One can’t do that anymore. But you pretty much needed a piece of property on the lake to do that. If your property was across the lake or away from the lake where you had to drill a well, there are few cases where there are six-hundred foot dry holes. It’s a very tight, dense bedrock material in the Black Hills and it doesn’t yield a lot of groundwater. And so, over a matter of miles you know a little about more than maybe eight to ten miles west of downtown Olympia which is glacially deposited sand and gravel material where you have some very productive water wells in the Lacey, Olympia, Tumwater area, go eight miles west of Summit Lake, you have a six-hundred foot dry hole, so geology is very important.
And then a third factor is, we have these watersheds, water resource inventory areas, we have 62 of them that are kind of listed statewide, starting with the Nooksack as WRIA one and I believe it’s the Pend Oreille as WRIA 62, and everything in between. But I’ll focus on a of couple examples, one being the WRIA 18, which is the Elwha-Dungeness watershed.
And so the Elwha River, west of Port Angeles, you know, drains the interior of Olympic National Park, is a very robust river. Recently two dams were removed of that river to allow wild salmon to swim upstream and then spawn and that’s a great success story. And even though not a lot of people live along the lower Elwha, there are aquifers kind of in connectivity with the Elwha River that are very productive aquifers for perhaps future growth someday.
Move 15 miles to the east, Dugeness watershed, again comes from near the interior of the Olympics, is a pretty robust river. The Sequim area is a nice plain, flat area with lots of agriculture, but it’s an exceptionally, compared to most of Western Washington, a pretty dry climate. Roughly 15 inches of rain a year. Is the driest spot in, at least, Western Washington. In fact, the farming up in Sequim relies on surface water irrigation from the Dungeness River from water rights from the early 1900s to provide that water. But that river is especially tenuous to flows. It can be flowing as high as three, four-hundred, five-hundred cubic feet per second during the spring snowmelt runoff of April, May and early June. But this time of year, in August and September, it can be between sixty to a hundred cubic feet per second, and the fish, trying to move upstream to the hatchery where they were hatched from, or the wild salmon that move upstream to spawn naturally are struggling to get up a stream when the flows are that low. So, that’s one watershed with two different rivers, two different stories, which I can extrapolate to 62 watersheds, 62 different stories. Each of these watersheds that we have has a different story in terms of water availability.
So, I’ve touched on different geology, a different precipitation pattern, wet west, dry east, sixty-two different watersheds, and then the final part of this balancing act of trying to make these decisions, these policy decisions, these regulatory decisions, these water right application decisions, are our state laws and regulations. I’ve touched on already, the state surface water and groundwater code of RCW 90.03 for surface water 90.44 for groundwater, but there are other state laws, and each, many of these sixty-two watersheds have their own separate instream flow regulations where they set aside minimum flows for these streams and tributaries in their river, or in their watershed, which is part of a water right in and of itself, or it might have further restrictions for water use. But, they’re different for each watershed.
So, you have these legal, physical availability geologically, physical availability based on annual precipitation, and physical availability based on the watershed, the supply of water, surface water and aquifer conditions in each of these different watersheds that really make water availability, physical water availability a challenge to achieve in some areas.
That’s all the time we have for this month’s episode of Water Law 101. Join us next month as we continue to explore water rights issues in our state.