An agency backlog: ‘It’s not easy to get answers’

The following article appeared in the March 20, 2006 edition of The Olympian.

When you look at the Department of Ecology's water rights application backlog, you may get a different perception about the way things are. Some applications have been on file for well over a decade. For an Ecology employee to be telling a media outlet that there is now more demand for water right changes than for new water rights is at least a slight of hand. It's more a case of Ecology simply not moving on applications for new water rights.

We're not convinced that, as the Center for Environmental Law and Policy asserts, there is a lack of water available for new uses. The policies that make the water unavailable are simply that . . . policies. From the draft instream flow rule that was being pushed through for WRIA 17, we learned that such water shortages are largely administrative, rather than actual.

The article does underline the idea that it's now easier for a municipality to enter an eminent domain action against a private landowner to obtain a parcel's water rights than it is to obtain a water right through the Department of Ecology.

We think that's just not right.

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An agency backlog: ‘It’s not easy to get answers’

By Christian Hill
The Olympian

The state has thousands of backlogged requests for more water, and every year the backlog increases.

The reason is simple: There is too much demand for water in some areas of the state and too little supply.

In these areas, the water above ground in creeks and rivers and underground in aquifers is already fully committed — to either humans or the environment, or both.

That makes the decision about whether to grant additional water more complex both technically and legally, as time passes and population increases.

“It’s not easy to get answers without meeting the water code and the requirements under it, and the impairment test for flows and for other water rights,” said Tom Loranger, regional water resources manager for the state Department of Ecology, the agency that must make these decisions.

Under state law, water belongs to the public, and anyone has the inherent right — without a permit — to draw out up to 5,000 gallons a day to serve a home or small group of homes. Users of larger volumes, including individuals and cities, must secure a water right from Ecology.

A water right gives the holder legal authority to draw out a certain volume of water for a specific purpose.

To receive a water right, the request must pass a four-part test. Ecology must determine:

• Is there water physically available?
• If granted, would the new water right impair the holder of an existing water right? In other words, would the withdrawal of water mean less water for someone else?
• Will the water be put to a beneficial use?
• Will the water use be in the public’s interest?
  

Holders of water rights also must get state approval to change the purpose of use, or if they want to withdraw water from a different location or divert it somewhere else.

By the numbers

For Ecology’s southwest region, which serves 11 counties including Thurston, there are six employees to review applications for water-right changes, and a full-time and half-time position to process applications for new water rights, according to Loranger.

State lawmakers have assisted by easing some of the requirements and allowing outside consultants who are paid by the applicants to perform the technical analysis so Ecology can make decisions faster.

The change has helped reduce the number of outstanding applications for water-rights changes. In fiscal year 2004, the most recent for which figures are available, Ecology processed 517 applications, double the number of new applications for water-right changes submitted that fiscal year. The total number of pending applications was 1,208.

But the backlog of new water-right applications continues to grow. In fiscal year 2004, according to state records, the number was 5,296, an increase of 69 over the previous year.

In reports to state lawmakers, Ecology says the increase occurred because its staff focused on making decisions on water-right change applications rather than new water-right requests. Demand also has shifted, from requests for new water rights to applications for changes where water already is available.

Karen Allston, executive director of the Seattle-based Center for Environmental Law and Policy, said there’s another reason: The water isn’t available.

“Instead of saying no, which is an unpopular political decision, they’re not saying anything,” she said. “The reality is the water is not there for new uses.”

A local case study

Residents need only look at the situation the city of Lacey is facing to understand why the process of requesting new water rights is so daunting.

Lacey serves about 60,000 water customers both inside and outside its city limits and is bumping up against the maximum volume of water it can legally draw from the ground. A de facto moratorium on new projects outside the city limits is in place because the city can’t guarantee it will have adequate water to serve additional development.

Lacey first requested new water rights to serve growth in 1994.

It wants to draw some of that water from the McAllister sub-basin, one of seven sub-basins in the Nisqually watershed. The sub-basin is “closed” as a source of new water rights because all of the available water is committed on paper for use by wildlife or humans. The city of Olympia also is interested in acquiring new water rights there.

Recently, Lacey submitted data to the Ecology Department from a computer model that shows the potential effect on local creeks and lakes if more groundwater is diverted for public use.

Ecology must now determine the extent to which the city must mitigate — or reduce — those effects to an acceptable level before it can make any decision on the applications. The city then will have to draft a plan on how it will ensure that the withdrawal of more water doesn’t hurt the environment or other water users.

“It’s a lot easier and quicker to get to a ‘no’ than it is to get to a ‘yes,’” said Tammy Hall, an Ecology hydrogeologist. “In other words, the city of Lacey and the city of Olympia have known for a long time that these applications were problematic because of what was going to be happening if they withdraw that water at those locations.”

There are numerous ways to mitigate the effects of new water withdrawals, including the use of reclaimed water or acquisition of retired water rights. In fiscal year 2004, according to an Ecology report, the agency made decisions on 120 new water-right applications. The agency approved one of every four of those applications, with the remainder denied or withdrawn.

Lacey’s situation is a case study in why the cities want to condemn property at the former Olympia brewery to acquire its substantial water rights. The method is controversial, but it could be quicker and less expensive for the cities to acquire water that way than by applying to Ecology. But even if the cities are successful in gaining access to the brewery’s water, they still will have to pursue additional water rights to keep pace with growing demand.

Not without criticism

The Center for Environmental Law and Policy and one former Ecology employee have questioned the effectiveness of the water rights system in Washington.

The employee said she was fired for raising questions about how she could make water-right decisions without knowing how many existing rights are valid or how much total water is available.

In her 2003 whistleblower complaint to the state auditor, she cited two instances in which permit writers granted water-right changes without detailing the evidence upon which the decisions were based.

She also charged that Ecology doesn’t have a way to identity water rights that have been relinquished after five consecutive years of non-use in its southwest region. Such a tracking system would provide Ecology with more water at little or no cost, according to the complaint.

In his response, State Auditor Brian Sonntag said state law doesn’t require Ecology to document such findings or identify or track relinquished water.

Allston, CELP’s executive director, said water has been over-appropriated in many parts of the state because Ecology has been unable to predict the availability of water. As a result, she charged, there is not enough water in streams during critical summer months to support fish in those areas.

The organization has “advocated all along you really need to have good information in order to make good decisions,” she said. “In the past, Ecology made decisions without really having good information.”

The agency has made progress to improve the system, she said.

An Ecology spokeswoman, Nelsa Brodie, said the agency does have an extensive tracking database for a large number of water rights, but it doesn’t have the resources to constantly monitor more than 200,000 water rights and an estimated half-million exemptions. It does investigate the status of water rights when there’s a request for a change or a complaint.

Cities’ water supplies

Olympia

Outlook: The city has water through about 2015 if residents keep conserving. It has rights to 22 million gallons a day at McAllister Springs and five wells.

Need: It will need 15.6 million more gallons of water a day by 2050.

Plan: In addition to water rights at the former brewery, officials are working on getting rights at two more wells. They’re looking for more ways to use recycled wastewater and more incentives for people to conserve. They also want to develop a new well field in the McAllister area.

Lacey

Outlook: The city is running out of water it can legally pump out of the aquifer and since June 2005 has imposed a de facto moratorium on development outside the city limits. The city has rights to pump nearly 2.7 billion gallons of water each year.

On a typical day, the city uses 7.5 million gallons of water a day. On a hot summer day, water customers in Lacey use about 13 million gallons a day with an all-time daily peak of 15.4 million gallons.

It used 86 percent of its granted water rights to serve utility customers in the 12-month period ending Feb. 28. Water usage for that period was held in check by the relatively cool summer of 2005; otherwise, the percentage could have been higher, city water resources manager Peter Brooks said. In recent years, water use has grown about 6 percent each year, primarily because of connections to new development.

Need: The city has requested rights to pump out an additional 3.4 billion gallons of water a year to serve customers when the city and its urban growth area are fully developed. The earliest request was submitted in 1994, and the state Department of Ecology still is reviewing it and the later ones.

Plan: City Manager Greg Cuoio has said he believes Ecology will grant the city additional water rights gradually to serve the city’s short-term needs. Otherwise, the city will have to examine alternatives, which could include a communitywide development moratorium.

Meanwhile, the city has various programs and policies in place to encourage water conservation. The city also is interested in water rights at the brewery site.

Tumwater

Outlook: The city is in good shape but will need more water in the future. It has rights to 11.9 million gallons of water a day.

Need: It must increase its supply by 20 percent, or 3.17 million gallons a day, by 2022.

Plan: Tumwater also is interested in water rights at the brewery. In the meantime, it’s applying to the state for water rights at a well field near North Street and a second one on 93rd Avenue.

Christian Hill covers the city of Lacey and military for The Olympian. He can be reached at 360-754-5427 or chill@theolympian.com.