Water Planning and Growth

Jim Rioux works in water policy for the 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 part four in a five-part series about water law in Washington state.

Part Four

This series began with an optimistic look at efforts initiated by Governor Locke to enact water law reform. “Water for people, fish and farms” was the sound bite. This noble effort underscores the water crisis that lies in wait just behind the transportation mess.

Communities throughout the state are finding it increasingly difficult to secure water rights needed for projected growth. The disturbing question is: Why is this crisis looming 11 years after the passage of the state’s Growth Management Act?

To understand the relationship between water and the GMA, it’s important to look at the basic mechanics of GMA. For GMA implementation, the county is where the action is. County governments are the land-use authorities and, in general, cities are the providers of service.

Counties that meet a certain growth criteria or those that voluntarily “opt in” to the act must develop comprehensive plans to accommodate growth.

Cities are treated as separate entities and must also develop comprehensive plans for growth. Population projections are developed by the state Office of Financial Management based upon census data. Projections must be updated at least once every five years.

The first task in GMA planning is the designation of critical areas. Quoting the Western Washington Growth Management Hearings Board, “Vulnerable critical areas and resource lands are designated first, and other goals are then served.”

The next step is designation of lands for other uses. The urban growth areas, typically cities, are designated for high-density populations with high levels of urban services such as water delivery.

Here begins the circular argument that has raged since the passage of the GMA. The projections are not targets. Just because a number comes from the Office of Financial Management does not mean it is a goal. The curve of the circle, however, is formed in the GMA itself.

The GMA requires that public services accommodate projected growth. They must be adequate to serve the anticipated population without decreasing levels of service. Communities must install, and pay for, adequate infrastructure (roads, water and sewer systems, etc.) before those who will benefit get here.

To keep rates reasonable, projects are funded through arrangements that depend upon revenue streams from the people yet to arrive.

Communities must ensure the projections are realized to pay for the infrastructure that was mandated by the GMA. So, effectively, the projections become targets.

Looking specifically at water, the GMA requires that the quality and quantity of water be addressed in the following areas:

•Designation of critical areas (RCW 36.70A. 050).

•Planning goals of encouraging development of urban areas, promoting economic development, protecting the environment, and providing public facilities and services (RCW 37.70A.020).

•Issuance of building permits (RCW 19.27.097).

•Approval/disapproval of subdivisions (RCW 58.17.110).

Here is where the GMA appears to have some teeth. The GMA gives the county or city governments the authority to deny a building permit or subdivision proposal if the applicant cannot demonstrate that water is available to meet the purposes of the building or proposal.

Let’s look at two scenarios to illustrate how this works: a new house within a city and a small subdivision proposed outside of any UGA. In the first, the city will have developed a utility water system plan (WSP). The WSP will have gone through county review for consistency with GMA planning and receive approval from the state Department of Health.

Through interagency agreement the Department of Ecology reviews the WSP for water-right issues. The pipes should be in the ground, the pumps should be capable of delivering the water and water rights should be secured. The building permit can be approved by the city.

In scenario two, the proposal will go to the county for approval. The subdivision will be required to meet density limits of GMA planning. A nearby water utility—possibly private, possibly public like a PUD—will provide service. Another alternative could be development of a new water system.

In any case the utility will have gone through a utility planning process, just like the city, that requires county review for consistency with GMA requirements and state approval. Assuming all is in order the proposal can go forward.

Now let’s throw the water code into the mix. In the case of Washington v. G. Theodoratos, the state Supreme Court reaffirmed the concept that no water right is secure until it is actually put to beneficial use. While this case dealt with a private water system, the court indicated that municipalities would likely be treated the same way.

The water rights secured years ago by many communities, who were relying on them to accommodate growth, are now in question. Even water saved through conservation is potentially subject to return to the state, because water being saved is not water being put to beneficial use. The high goals of GMA are thwarted.

In scenario two, the subdivision is likely to be approved based upon an application for new water rights or a change to an existing water right. The building permits, however, cannot be issued until the water-right permit is secured. Given the decades long backlog of water-right processing (See “A History of Water Law” in the May 2002 issue of Green Pages), and the uncertainty of existing water rights, logical development is again defeated.

A first-level reaction may be, “So what? Planning was poor.” A more thoughtful reaction would consider the effect of the “They are coming so you better build it” philosophy of GMA.

Forced to pay for infrastructure, governments at all levels promote growth. If that growth does not occur in accordance with the comprehensive plans, sprawl results. This is because the relief valve for both situations described above is the exempt-well provision of the state’s water code.

Under this provision, a well can be developed to serve small uses, defined as less than 5,000 gallons per day, without obtaining a water right. So I can’t build in the city or its UGA, and I can’t get a subdivision approved, but I can build low-density single-family homes out in rural and forested areas.

These critical areas become more threatened. Public health and safety is diminished because people live where services are minimal. Community budgets are busted because growth does not pay for the infrastructure investments made in the past and there is increasing demand for services like roads, fire protection, police and ambulance in more remote areas.

If you think that’s okay because water resources and fish are protected you are mistaken. The water code is an antiquated system to resolve disputes between conflicting water-right holders (see “Protecting Instream Flows” in the April issue, page 10). The only value protected is who said “it’s mine” first.

Although there is noble language in statute about the protection of our rivers, lakes and fish, the mechanics of the water code only protect the “rights” of those who claimed the lion’s share of our state’s water decades ago.

With all these state and county agencies involved in the process, why can’t these issues be worked out? The answer is that decisions are compartmentalized into so many agencies that they haven’t got a chance.

The Department of Health has authority limited to public health considerations. Ecology is not explicitly part of the planning process except by interagency agreement, and, due to the extreme complexity of the water code, has little flexibility to deal creatively with long-range planning issues.

At the county and city level, planning departments must deal with the full range civic issues to weave together a comprehensive plan. They typically depend upon a separate local health agency or department to make the water adequacy call. These entities have little authority to affect planning direction and certainly have no ability to influence water-right decisions made by Ecology.

By not establishing a cohesive structure for integrated planning, GMA passes the buck to developers to prove their water rights. Plans are made under the assumption that water rights will be secured. When they cannot be secured, the developer is supposedly turned away. This is too late.

Developers deserve to know that the land was not available for development. This cannot be known because the backlog of specific water-right decisions prevents Ecology from conducting a full assessment of water rights at the early planning stages.

The utility presents a reasonable approach for securing water rights. State and county planners approve the plan, all basing their actions on the assumption that the “reasonable approach” will yield the desired result. Even if a utility or city concluded that there is no more water, there is no mechanism to appeal the OFM projections and be released from obligations to install the infrastructure to meet the projected demand. This is not planning; it is fraud. §

Next Month — Part Five

There’s Gotta Be a Better Way. My final column in this series will take a look at some of the more holistic approaches to water resource management that the state has attempted.

This article originally appeared in the South Sound Green Pages, a member-supported journal of environmental news and commentary based in Olympia.