1. Ocean/Envir 260
Lecture 14:
Overview, Water Law

2. 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.

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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.

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

14. 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

15. 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?

16. 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

17. 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

18. 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?

19. 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?