Water Rights and Agriculture

Jim Rioux works in water policy for the state Department of Health’s division of drinking water. The views expressed here do not represent the positions of the Department of Health.

Editor’s Note: This is first of a five-part series about laws relating to water rights and usage in Washington state.

Pinned above my desk is a postcard showing two farmers standing on a parched field with shovels raised and poised to strike each other. The caption is “discussing water law; a favorite western pastime.” I have worked in the field of water policy for the past five years. Admittedly, I am a relative freshman, but I’ve been swimming in the area long enough to know that if this card makes you giggle it means that you have glimpsed the sad reality in the joke.

Water is the source of life. Water is also a limited resource. So it should be no surprise to anyone that water is the source of conflict. In no arena has that conflict been more bitter than within the agricultural community of the dry western states.

In the early days of settlement of the western United States the doctrine of prior appropriation became the accepted premise of western water law. The clichés “First in time, first in right” and “Use it or lose it” succinctly articulate the fundamentals of this doctrine. The first to claim a right to use the water gets it. In times of shortage the last person in line loses his or her right in order to protect the rights of senior users.

But the right is conditional. One of the most important conditions is that you keep putting that water to beneficial use. In Washington state, stop using your water for five years and you relinquish your right, making the water you were using available once again for appropriation.

Under this legal structure the state’s agricultural community has grown and, for the most part, thrived. Agriculture has historically been the state’s most significant economic and cultural sector. With that status came the kind of political influence that has ensured that the mighty thirst of this great industry was satisfied with massive irrigation projects.

Today, however, increasing pressure from growing communities and changing values have put the spotlight on agricultural water use and water waste. A 1998 report by the state Department of Health indicated that statewide agricultural water use represented 75 percent of total water consumption. Regionally, this jumps to 85 percent in eastern Washington.

In the southwest portion of the state, including the Olympic peninsula and counties west of the Cascades but south of Pierce County, agricultural water use makes up 49 percent of the total. In the northwest region this figure drops to 11 percent due to the large municipal centers in Pierce and King Counties.

As the state’s urban population grows, the demand for water for basic sanitary and public health needs will increase. Meanwhile, water will become more and more scarce and the state’s rivers will increasingly suffer from depleted stream flows.

While state leadership wrestles with the lofty challenges of meeting all of the state’s water needs with limited resources, Brian Thompson, with the Thurston Conservation Districts, sees the question on the ground as one of basic survival. Thompson sees local farmers caught between conflicting state mandates.

On the one hand, provisions of the state’s water law work to effectively take water rights away from farmers (“use it or lose it”), while Growth Management Act (GMA) requirements are increasing their water needs. GMA prevents development of rural lands and requires large-acre tracts in rural areas. Farmers must remain farmers.

While crops such as hay and grain can grow in western Washington with little or no irrigation, these crops are selling at some of their lowest prices in history. So, in order to keep small farms viable, they must grow high-value crops such as flowers and vegetables, which require much more water.

According to Thompson, the problems of obtaining new water rights and retaining existing rights are probably greater in Western Washington than in the arid areas east of the mountains. “People need to understand that the rain doesn’t come at the right time of year to allow farmers to grow the crops they need to survive.”

Last year the Governor’s Competitiveness Council released its report listing changes in state policy and law necessary to keep Washington economically competitive. An area highlighted in the report was state water law, and, in particular, the manner in which the Department of Ecology has carried out its regulatory duties. On cue, the Washington Environmental Council and the Center for Environmental Law and Policy released their report entitled Dereliction of Duty, in March 2002. They see things quite differently.

This thoroughly documented report describes a state water resource management system marked by agency inaction, legislative neglect, and inappropriate influence of legislative power over the executive agencies charged with managing and regulating the state’s water resources.

This report also highlights that while many vocal citizens have complained that it takes years to get new water-rights applications processed through Ecology, the agency has suffered severe staff cuts from which it has never fully recovered. More significantly, the report points out that in some parts of the state there is simply no more water to allocate.

When it comes to the question of the state taking water rights away from farmers, Mike Harris, manager of the water resources program at the Department of Ecology’s southwest regional office, does not think that anyone at the state is trying to take water rights away from anyone. Harris points out that when farmers—or anyone—submit applications to change or transfer a water right, state law requires Ecology to verify the validity of that right.

Water rights, claims that were improperly filed or rights that were not continuously put to beneficial use are not valid water rights. Furthermore, under current law, water that is not used due to improvements in technology or as a result of conservation is not a valid part of the water right. That portion of the water right, by law, must revert to the state for re-allocation.

This effect of conservation, or as some have called it “the conservation disincentive,” was one of the issues driving the governor’s water initiative. During the 2001 legislative session, Governor Locke and the state legislature embarked on an ambitious attempt to deal with the state’s water resource problems. Together, they began a multi-year effort to reform the state’s water laws.

Key provisions of legislation that passed that year included clarifying the authority of conservancy boards, local boards established to process water-right changes and transfers; allocating additional funds for setting instream flows; providing relief from relinquishment for certain agricultural situations; and providing a modest tax incentive for utility water conservation.

More important than the legislation, however, was a commitment to keep working. That work was picked up almost immediately after the 2001 legislative session, which did not end until June.

In September a team of legislators convened a meeting in Lacey to hear about water law problems from water users themselves. In October a three-day conference was held in Tacoma to begin crafting solutions. Emerging from that conference, the governor and the principal legislators were still committed to achieving four ambitious goals:

In order to engage in the political processes that will continue to unfold, it is critical that citizens become more informed about the state’s water policies and the issues around them.

•Setting and achieving instream flows;

•Finding water for growing communities;

•Fixing “use it or lose it” policies; and

•Identifying funding for water infrastructure, including storage and drinking-water systems.

In the end, controversy and budget problems prevented significant progress. What emerged from the 2002 legislature was a very limited bill.

This bill gives the Department of Ecology direction on its water law compliance program; defines Industrial Reuse Water, which should give industrial water users more options for recycling their process water; expands the state’s water trust program, a program designed to keep water in streams during periods when the water-right holder does not need to use the water; and provides exemptions for some permit requirements for water-storage facilities.

Although these measures offer some limited benefits, they hardly represent significant steps toward resolving the state’s water resource problems. Furthermore, it is not clear at this time that Governor Locke or the legislature remain committed to this effort.

A noteworthy aspect of this year’s legislative session was the silence of the general public on water issues. This came in spite of a drought year that brought farmers to an explosive point on the Klamath River in Oregon and forced severe water restrictions in parts of eastern Washington.

These problems won’t go away by themselves. Political leaders will not enter this difficult fight unless their constituents demand it from them. In order to engage in the political processes that will continue to unfold, it is critical that citizens become more informed about the state’s water policies and the issues around them.

Next month, I’ll present a brief primer on water law in Washington. This will be followed by articles examining the state’s instream flow regulations, Growth Management and water, and finally a look at the state’s attempts at holistic water resource management.

For myself, I must be an optimist. Although the problems seem intractable and time is running short to solve them, I guess I wouldn’t be doing this work if I didn’t think there was hope. However, the day that we can say that our water problems have been solved seems far in the future. Until that day, pick up your shovels, folks, and let’s have us a debate! §

This article is repinted with permission of the South Puget Environmental Education Clearinghouse based in Olympia. It originally appeared in their publication, the South Sound Green Pages, a member-supported journal of environmental news and commentary.