Draining Rivers Is Not the Way to Accommodate Growing Populations
Draining Rivers is Not the Way to Accommodate Growing Populations: 2003 Changes to the Municipal Water Law has Been a Dismal Failure
by
Rebecca Berman Phelps, Chair Cascade Chapter Water and Salmon Committee Rachel Paschal Osborn, Spokane public interest water lawyer
Water is a finite resource owned by the people of Washington and the Tribes. With 25% of Washington’s 62 watersheds already over-allocated, there is already not enough water for people and fish. Washington rivers are filled with endangered and threatened wild salmon, steelhead and other species struggling for their lives because Washington water is mismanaged in violation of the public interest and in violation of the Endangered Species Act which requires the protection of listed species. Washington rivers must be protected and restored, not drained until they become dry riverbeds.
Conservation, pricing and other alternatives must be used to meet future water needs. The City of Seattle is an example of how population growth does not mean that a city must also increase water usage. Over the past quarter century, the City of Seattle has grown from approximately 1 to 1.3 million people or by 30%. However, total water usage today is lower than it was in 1975. Seattle has made investments in conservation efforts: rebates for efficient appliances, changes to the plumbing code, and pricing designed to discourage waste. Both residential and commercial water use has steadily dropped. By way of comparison, while Seattle’s 1.3 million water customers use approximately 140 million gallons a day (“mgd”), the City of Spokane’s approximately 200,000 residents currently use 185 mgd. Despite serving only 15% of Seattle’s population, Spokane uses far more water. Under HB1338, Spokane can nearly double its usage to 348 mgd. The different approaches to water usage taken by two Washington cities demonstrate that there is an alternative to simply giving away the bulk of the public’s water.
Historically, the Washington Department of Ecology has issued ridiculously huge quantities of water rights to cities. When the State issued water rights to cities it did not give a thought to what would happen to the rivers of our state if all the cities actually pumped all of their "paper" water rights. No city was required to justify why it needed so much water. The state didn't ask the city to create a water conservation program to reduce the impacts on the rivers. In 1998, the Washington Supreme Court ruled that these paper water rights are not valid. The cities could only continue to take the same amount of water actually diverted and put to beneficial use – not the amount stated on paper. In 2003, the Washington legislature passed the Municipal Water Supply Bill (also known as SESSHB 1338) HB1338 validates billions of gallons of unused water rights held by municipal water suppliers. HB1338 attempts to overturn the Supreme Court ruling, but does so at great cost to the environment as well as “junior” water users.
HB 1338 was enacted over the strong objections of Sierra Club, other conservation organizations, the Tribes and fishing interests, because 1338 violates the Washington and the United States Constitutions and the Washington Water Code and conflicts with legal precedent established by the Washington Supreme Court. HB1338 fundamentally altered municipal water rights in Washington. The bill retroactively validated water rights that were unused and should have been forfeited. The bill also conferred municipal status on private water systems and developers, thus making them exempt from the relinquishment (“use it or lose it”) provision of Washington’s water code. Because the bill operates retroactively, it is unconstitutional. The unused portions of water rights that were validated by HB 1338 total billions of gallons of water. By allowing municipal water users to pump the unused, invalid portion of their rights without consideration of the impacts on rivers and aquifers, HB 1338 will foment significant harm to many rivers. The bill has made it impossible to restore instream flow to any river systems where municipalities may increase pumping without limitation. This affects rivers and streams throughout the state. Expansion of municipal water rights results in a corresponding diminution of junior water rights and instream flow. HB1338 gives away public waters to private developers without regard to impacts on rivers and aquifers.
HB1338 made three major changes to the Municipal Water Law: (1) expands the definition of “municipal water supplier” to any private developer with connection for 15+ homes; (2) overturns the law that water rights are created only for water actually used or put to beneficial use; and (3) expands “place of use” for municipal water right to any area designated by municipalities, thereby removing Department of Ecology’s previous oversight – encouraging sprawl and increase in water use. HB1338 amends the Water Code by declaring pumps and pipes certificates issued for municipal supply purposes in the past to be rights in good standing and substantively amends the water code by adding new definitions of municipal supplier and municipal supply purposes.
We have monitored how HB1338 has been implemented and have watched it’s harmful effects or the negative impacts on stream flows and water supplies. Essentially, HB1338 enlarged water rights for municipalities and developers at the expense of environmental and existing water rights holders. HB1338 denies legal rights to citizens of the state and junior water right holders. Now millions of gallons of water are withdrawn without any examination of the harm to fish and other wildlife.
We must keep the public’s water public. Public privileges without public oversight violates the public interest. Water of the state is owned by the public and the Tribes and must be managed for overall benefit with the assurance that there will be rivers and natural resources for future generations.
For more information please contact Rachael Paschal Osborn at rdpaschal@earthlink.net . Water and Salmon Committee meetings @ Sierra Club, 180 Nickerson St, Suite 202, Seattle, generally the 3rd Mondays of the month 7:00-9:00 P.M.
