July 12, 2001
Water metering: the debate trickles on
By JOE MENTOR Jr.
Mentor Law Group
In Washington, as in other western states, water rights are limited to specific quantities of water. As competition for water resources increases, water users and regulators are looking for ways to use available water supplies more efficiently.
They are placing greater emphasis on water conservation and enforcement of existing water rights and against illegal water uses. The accurate measurement of water uses is critical to achieving these objectives, and is becoming a focus of increasing attention and debate.
The measurement of ground water withdrawals and surface water diversions is commonly referred to as source metering. Source metering involves the installation of gauges or other measurement devices where water is withdrawn from the ground or diverted from a surface stream to determine how much water is being used.
There are many different varieties of water meters that are commercially available for both surface water diversions and ground water withdrawals.
Metering law revisited
State laws have long required source metering of certain kinds of water withdrawals. As early as 1917, the state water code required metering of surface water diversions. Similarly, since 1945 the code has allowed Ecology to require measuring and reporting of groundwater withdrawals.
In 1988, the Legislature authorized the Department of Ecology to require water metering for all new surface and groundwater permits, and to require permit holders to report water use. Ecology’s implementing regulations were directed primarily at groundwater withdrawals, where Ecology was concerned about declining aquifer levels, or where the agency needed data for watershed planning purposes or to resolve conflicts between competing water users.
In 1993, the Legislature expanded the metering law to require metering of all new surface water permits, existing surface water diversions greater than one cubic feet of water per second, and surface and groundwater diversions and withdrawals from water sources that support critical and depressed fish stocks. Until recently, however, state metering regulations were based on the 1988 version of the law.
Bowing to pressure from conservation organizations and the listing of several fish stocks under the federal Endangered Species Act, Ecology recently announced its intention to adopt new statewide rules governing water metering.
Ecology ordered to start metering
In March 1999, American Rivers and a number of other conservation organizations filed suit against Ecology for not implementing the 1993 metering law. In December 2000, the Thurston County Superior Court issued a final ruling ordering Ecology to comply with the metering law by Dec. 31, 2002.
As requested by the petitioners, Ecology agreed to require metering within two years for 80 percent of water use in 16 “fish critical” watersheds. On March 30, Ecology submitted a compliance plan to the Thurston County court. Ecology’s compliance plan focuses on the biggest water users in each of 16 watersheds where the Washington Department of Fish and Wildlife has classified fish stocks as critical and depressed.
Ecology’s compliance plan includes a commitment to adopt a rule that is consistent with the 1993 statute. In June 2001, Ecology began a formal rulemaking process. Ecology will solicit public comments on the proposed rule from Aug. 15 through Sept. 15, and plans to adopt a final rule in December. The proposed rule contains the following elements:
The commitment to adopt a new rule is only one part of the court-ordered compliance plan. The plan also describes Ecology’s approach to enforcing the rule. The compliance plan calls for gradual implementation of the metering requirements. Furthermore, the compliance plan only targets the largest users, and only in certain watersheds.
Some water users already have voiced concerns about the proposed new rule. Most water users associate water meters with customer billing by water purveyors. The association between meters and charges for water caused many to assume Ecology was attempting to impose a fee or tax on water use. Water users have a vested property right in the right to use water, but the water itself is a public resource that belongs to the state. Nevertheless, Ecology has no authority to impose fees for the use of water.
Many smaller water users also are concerned about the future implications of the proposed rule. There have been efforts in the Legislature in recent years to restrict the use of so-called “exempt wells,” which are small withdrawals of groundwater that are exempt from state permit requirements. Many smaller water users fear the metering rule will lead to further efforts to restrict exempt wells.
Finally, many water users are undecided about the new rule, but are concerned about how Ecology will use meter data. There is an ongoing feud between Ecology and water users over application of the state relinquishment statute, the so-called “use it or lose it” rule.
An unintended consequence of the proposed metering rule might be that water users actually use more water, not less, in an effort to document maximum water use to protect their water rights from relinquishment.
Water meters provide water users with a tool to use water more efficiently. Water metering also is a step toward increased enforcement against illegal water use. This is an issue where water users disagree.
Some water users resent what they see as an infringement of their vested property rights to use water. Many others see the need to crack down on illegal water use in order to protect the water supplies of those who use water under a legal right to do so. Still others think the rule is too narrow in that in only applies to larger diverters, who probably already have water meters, and who think smaller diverters also should be required to help meet water needs to restore declining fish runs.
Ecology’s proposed metering rule is merely the first step to implementation of a statute the requirements of which are relatively clear. Washington’s water code ensures the protection of senior water rights from impairment by junior water users. The current metering requirements, however, are targeted only at protecting fish stocks, and only then from excess use by the largest water users.
On its face, the metering rule compliance plan falls short of meeting the requirements of the statute. For this reason alone, Ecology’s proposed regulations only are the beginning, not the end, of the debate about enforcement of the water metering statute.
Joe Mentor Jr. is an attorney with the Seattle law firm Mentor Law Group who concentrates his practice in the areas of water resources, land use and natural resources development.
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