No relief in sight for state's water permit backlog

By JOE MENTOR, Jr.
Lasher Holzapfel

Over the next few years Washington will face a growing water supply crisis.

Unlike most other Western states, Washington historically has enjoyed abundant water supplies in most of its populated areas. As a result of rapid population growth, however, municipal water suppliers face significant new water demands that are straining existing capacities. Moreover, Endangered Species Act listings and recovery programs for declining salmon resources will mean substantial increases in instream flows for fish, and even less water available for human consumption.

Permission to use water is granted by the Washington Department of Ecology through the water rights permitting process. The permitting process begins when a prospective water user submits a Water Right Application to Ecology. Ecology publishes a public notice and decides whether additional water rights are available. If the application is approved, Ecology issues a Water Right Permit allowing the permittee to develop water for the proposed uses. Ecology issues a Water Right Certificate when permitted water rights actually are put to beneficial use.

Permit backlog growing

The traditional response to increased demands for water has been to develop new supplies. Until recently, Ecology routinely processed water right applications in the order received. The only significant issue usually was whether junior water users were affected.

Each year, however, untapped water resources became harder to find. Permit decisions also became more complicated in the face of growing recognition of the need to protect instream flows and the connection between ground water and surface water.

Ecology now faces a growing backlog of pending water rights permit applications due to an increasing number of applications and the growing complexity of permit decisions. Statewide, over 5,000 applications are pending for new water rights permits. To make matters worse, in 1993 the state legislature cut the budget for Ecologys water resources program by over 60 percent, causing a drastic reduction in the number of water permitting staff.

Facing a growing number of applications with significantly fewer staff to perform processing functions, Ecology started processing water rights applications in "batches."

Permit applications now are grouped together in geographic areas. The agency conducts one investigation, makes one determination of water availability, and then makes a series of permit decisions based on that investigation. Ecology has prioritized the state's 62 major watersheds for purposes of permit processing and is conducting a watershed assessment for each one. Generally, the agency won't process any applications in a watershed until the watershed assessment is completed.

Political impasse continues

Throughout this decade there has been an ongoing debate over instream flow regulation, hydraulic continuity and the role of Ecology in the permitting process. The legislature and the governor have been unable or unwilling to compromise on their policy differences for the water resources program. Both sides expect their ranks to be strengthened in the next election. But political power remains divided between Republicans and Democrats. As a result, Ecology's water right application backlog has worsened, with no relief in sight.

Last year, in Hillis Homes v. Ecology, the Washington Supreme Court sanctioned Ecology's tardy permit processing in light of legislative budget constraints. The Court suggested permitting delays were "intolerable" but refused to order the legislature to increase funding. The Supreme Court upheld the agency's decision to perform a watershed assessment before processing the applications. Nevertheless, the Court directed Ecology to undertake formal rulemaking before developing a permit application priority system.

Washington's total population counted in the 1990 census was over 4.8 million, more than double the 1950 population. The 1996 population estimate is over 5.5 million, an increase of more than 13 percent during the six-year period from 1990 to 1996. According to official estimates, the state's population is expected to reach six million right after the turn of the century, and over 7.7 million by 2020. Nevertheless, there is a de facto moratorium on water resources development in many areas of the state.

The implications for this impasse are far-reaching. For example, the State Building Code requires every building permit applicant to provide evidence of an adequate water supply for the intended use of the building. Evidence to satisfy the state requirement may consist of a water right permit or a letter from an approved water purveyor stating the purveyors ability to provide water. An application for a water right will not satisfy the state requirement.

The need for a water certificate of availability no longer is taken for granted. Many existing public water systems are unable to guarantee new users that a water supply will be available. Even those with adequate water supplies refuse to issue a certificate until after land use approvals have been provided and a building permit application has been filed. Consequently, land developers must obtain land use approvals with no guarantees water ultimately will be available.

What can be done about this? For one thing, we can urge the legislature and the governor to provide adequate funding for Ecology's water resources program. It is unconscionable for our political leaders to hold thousands of permit applicants hostage in a high-stakes game to resolve policy conflicts over hydraulic continuity, watershed planning and instream flow regulations.

These applicants -- municipalities, developers, irrigators and others -- deserve an answer, even if the answer is "no."

Water transfers

Permit applicants should recognize, however, that it is increasingly unlikely new water resources will be available. Instead, they should look to alternative strategies to obtain the water they need.

In particular, as new water resources development becomes more difficult, water rights transfers are becoming more frequent. Water transfers reflect greater efficiencies in agricultural water use, conversion of farm land to other uses, and demographic trends toward increased urbanization. Furthermore, many significant environmental impacts caused by developing new water supplies can be avoided by transfers from existing uses.

There are a number of ways water transfers can be used to reallocate existing water supplies. Water transfers may take the form of leases, new water contracts, "assignments" of contract entitlement, exchanges or other creative arrangements.

Water rights exchanges in particular are emerging as an effective reallocation tool in the northwest states. Water exchanges are useful where one water rights owner desires a different place or purpose of use but a conventional change of use is infeasible. For example, an interbasin transfer or an attempt to move water rights to an upstream use may be physically impracticable. Exchanges allow water users to obtain "new" water supplies by retiring older water rights. Water exchanges also allow public agencies to increase instream flows without significant cash outlays.

Thus a water exchange provides an opportunity to meet growing needs for water for consumptive purposes while at the same time providing significant environmental and other public benefits.

Our greatest challenge in the next century will be to accommodate our region's tremendous growth and unprecedented economic prosperity without despoiling the quality of life that brought us all to the Pacific Northwest in the first place. Responsible water resources development is a critical part of this challenge. We must recognize there is a diminishing opportunity to find "new" water. Instead, water users must find creative ways to reallocate existing supplies.

Copyright © 1998 Seattle Daily Journal of Commerce.