Ocean/Envir 260 Lecture 14: Overview, Water Law

Water Law “The first in time shall be the first in right.” Washington Water Code A “lord of yesterday”? Written for conditions long past Profoundly affects conditions today 19th Century ranch, Colorado. Priority for water rights based on seniority made sense during settlement of the arid West.

Special Challenges Variations in Precipitation Variations in Use Olympic Coast vs. Columbia Basin Variations in Use Eastern WA, Puget Sound, SW WA Timing Demand greatest when supply smallest

1917 Water Code Surface water only State issues rights, approves transfers Amount, purpose, place Protect existing rights Goal: “Highest feasible development” of water use Still foundation for today’s law

Groundwater Same general rules (1945) “Exempt wells” Seniority doesn’t distinguish, ground vs. surface Always “hydraulically connected” “Exempt wells” No water right needed if: Irrigate up to .5 acre Single, group domestic uses up to 5,000 gallons/day More than 750,000 in state (!) Generic diagram of well system

Water Claims 1967 law to register (or lose) “claims” from before water rights system Goal: Clarity and finality, but… Reopened 1979, 1985, 1997 169,000 claims so far “Short of litigation, impossible to assess” validity of claims Chester Morse Lake, primary water supply for City of Seattle, based on claim before 1917 water code

Instream Flows Authority to set minimum flows at places, times Water right granted with priority date when flows set Junior (lower priority) to all before None before 1976 Many rivers, nearly all tribs still do not have Technically complex, politically charged Map of Water Resource Inventory Areas (WRIAs), which Dept of Ecology uses for water regulation

Tribal Rights Based on treaties “Implied” (purpose of treaty otherwise defeated) Rights date to mid-1850s, or “time immemorial” By definition, senior to all other rights Legal precedents clear But no practical effect until quantified Chief Seattle, leader of Duwamish Tribe

Adjudication Settle priority for “claims” Comprehensive review For particular waterbody Big river, small creek Almost all eastern WA Slow and tortuous today McCarran Amendment State processes include tribal rights Map of all completed and current adjudications in Washington. Only one in Puget Sound: Dungeness River

Watershed Planning Little fundamental change in law since 1971 Watershed planning processes limited by senior rights, unknowns Tribal rights Validity of claims Science, values for flows Withdrawals increasing Exempt wells huge challenge Shaded basins are “salmon critical”—i.e., flows are below Dept of Ecology targets for salmon

Experience of Other States Adjudication: long, necessary process OR, ID, MT all progressing Special courts Special negotiations with tribes Conservation Much more can be done Rates, metering, leaks, taxes? Map of status of Montana adjudications

Water Management Ultimately four choices: Conservation More storage Cost, legal challenges Inter-basin transfers Re-use Stormwater or wastewater Greater cost challenges Lake Whatcom, the source of water supply for the City of Bellingham. Most households served by the City have no water meters.

Stormwater Key to all nonpoint pollution 1987 CWA amendment: municipal programs are “point sources” Phase I: large jurisdictions (>100,000 people) Phase II: 2007-2012 University of Washington is one of few non-municipal stormwater permittees

Stormwater Permit Requirements Construction sites Public education, involvement Remove non-stormwater connections Map, monitor outfalls (Phase I) Develop strategic plans (Phase I) Manage “post-construction runoff” Broad effects on development

Stormwater State Manual Five volumes, 1,000 pages Best Management Practices “Flow control” is key How much stormwater flows from site, how quickly? “Pre-development” standard Effect: larger detention ponds Cost: $20K+ per new house?

Stormwater Criticisms of Manual “One size fits all” Questions on pollutant removal Effective? Cost-effective? Chemical unknowns Plus: “Pre-development” standard: legally “unduly oppressive”? Incentive for sprawl? Exemptions for smaller developments Addresses only one impact of development Science Panel report on Stormwater Manual

Low-Impact Development Manual advocates, does not yet mandate (2014?) Retain native vegetation, soils Use topography to manage runoff Green roofs, permeable pavement, reduced road widths Mostly public projects so far Key to minimizing new losses

Setting Priorities “Following the same [stormwater management] strategy in all watersheds, developed and undeveloped alike, simply makes no sense.” --Booth, et al (2004) Conflict with Clean Water Act? Either salmon stream or not No distinction between urban stream and priority “salmon refuge” Political challenge “Writing off” urban streams?

Recap: Water Law Water law: Lord of yesterday? Much withdrawn outside of system Unadjudicated claims, exempt wells Tribal rights may ultimately trump Conservation key for management Low-impact development crucial for stormwater Different stormwater/water quality standards for different basins?