State awash in wrangling over water rights

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Prospect of water-rights reform unnerves many

Each winter, water rises from glacial springs and seeps from suburban Seattle hillsides to form the North Fork of Issaquah Creek, which then tumbles into Lake Sammamish.

Each summer, the creek peters into puddles and dries up, leaving salmon to die in the mud.

This isn't nature at work. It's government.

Community water wells suck up the ground water that once fed the creek, and development now blocks rain and snow from recharging the aquifer - a process the state didn't understand until years after approving the use of water for the wells.

"Water rights are granted in perpetuity," said state Department of Ecology hydrologist Jerry Liszak. "We can't take them back just because our agency goofed."

While Gov. Gary Locke isn't expected to officially declare a drought until later this week, farmers, environmentalists, bureaucrats and developers, Republicans and Democrats agree: The state's management of water has been in disarray for years. Endangered salmon listings, an energy crunch and the coming dry season merely threaten to make chronic problems acute - and expose a bureaucracy ill-equipped to respond.

"If you come from a desert, as I do, there's this thinking that there's not a lot of this resource to go around," said Rob Caldwell, with the Center for Environmental Law and Policy, who once worked as a water consultant in Nevada.

"Here, we've never managed water efficiently because we think we have enough. We don't."

Now conflicts over Washington's signature resource are gathering like rain clouds in a mounting storm.

Even in wet years, water levels drop in parts of the state, pitting neighbor against neighbor. The state can't respond to requests for more water, nor can it catch all those who steal it.

This year, lawmakers and Locke are again pitching ideas to better parcel out the state's water. But a similar attempt failed early in Locke's first term, doomed by a political battle that sees water as both a resource for private use and a public reserve.

Now, frustrated by decades of legislative gridlock, Dan Silver isn't waiting for this session to prove any different. Silver recently retired as deputy director of Ecology to push a voter initiative. It would raise sales taxes to spend $1 billion on water conservation and other management changes.

"These days, I don't know anybody who's happy about water," Silver said.

Woes are widespread

Water problems aren't difficult to find.

"You could throw a dart at a map of the state and hit an area with water problems," said Tom Geiger, with the Washington Environmental Council.

Consider: Nearly three dozen creeks statewide run to dust in summer. In one-fourth of Washington's watersheds, the state doled out more rights to water than there is water available.

Expanding cities - even damp west-side cities such as North Bend - face building bans because they lack water. Residential wells, even in moist spots such as Whatcom County, go dry from nearby overuse.

Several ground-water aquifers, from the Kitsap Peninsula to the Palouse, are sinking. One, supplying water to 1,100 square miles of Lincoln, Adams, Franklin and Grant counties, loses up to 20 feet a year, forcing residents to replumb wells.

"It cost me a fortune," said Don Walter, an Odessa, Lincoln County, wheat and potato farmer who spent $40,000 deepening his well. He now draws water from 840 feet and expects another financial hit when rising energy prices further boost his pumping costs.

Across the state, those needing water are stuck in a backlog of 7,100 applications for water rights, a line that could take 35 years to get through. Stalled by the logjam: everything from a mammoth resort in the Rosyln area of Kittitas County to proposals for natural-gas-fired power plants.

Water misuse is common. In 1992, records show, the state suspected hundreds of Mercer Island homeowners were illegally pumping water from Lake Washington to dampen their lawns - a phenomenon officials believe has largely continued.

Last fall, the state cited two Hutterite colonies for irrigating without authorization.

But enforcement is spotty. Two years ago, the state employed just one water cop to make sure farmers, homeowners and utilities didn't steal or waste water. When people phoned to complain, "they wouldn't even get called back," said George Schlender, who oversees Ecology's water program in Eastern Washington.

Environmentalists and state officials maintain water laws, initially designed to encourage growth, are outdated. Agricultural users, city planners and developers - who grow uneasy when laws governing access to water are tinkered with - complain the problem is bureaucrats and lawmakers who change rules so often they can't plan for the future.

"Water law isn't broken," said state Rep. Gary Chandler, R-Moses Lake, an apple orchardist and the GOP's leader on water issues, who maintains there's plenty to go around. "What's broken is this system where we constantly reinterpret where we've been for 50 years."

Old system, new backlog

A century ago, Washington water was so plentiful, those who wanted some simply nailed a notice to a tree or post and took it. Today, anyone needing to divert surface water or draw 5,000 gallons a day or more from the ground needs rights to that water. That's roughly four times what a typical homeowner uses.

In Washington state, hundreds of thousands of cities, utilities, developers, businesses, farmers and homeowners hold rights to water.

Governing management of that water is a cumbersome jumble of laws, rules and court decisions, many in place since World War I. Even now, the minimum cost to apply for a water right - an application that can take days to process - is $10.

It's a convoluted system that hasn't aged well. Rights are passed down without ever being officially recognized. Paperwork gets lost. Decisions are made based on faulty assumptions. The state once granted rights to completely drain an Eastern Washington aquifer because it was assumed water users later could draw from the Columbia River, a prospect that now seems unlikely.

And it's a system designed when agriculture dominated and the population was one-fourth what it is today.

Now, communities trying to buy water from willing farmers often find they can't. The Family Farm Act, a 1970s state initiative to protect small growers from the spread of corporate farming, bans water transfers from small farms to other uses.

And farmers, presumed to use 70 to 90 percent of the state's water, often don't dare conserve. Under state law, any water they don't use for five years, they lose.

Historically, water rights throughout the West were administered based on seniority. During shortages, farmers with newer rights were simply cut off. Now, many of those newer rights supply residences and businesses.

"I asked folks who came before me in this job, `Why would you issue more rights than there is water in an average year?' " said Keith Phillips, who heads Ecology's water-resources program. "The answer was, `That's the way it was designed to work.' ... That doesn't fit real well when you're telling someone you can't have any water in your home this year."

And it works only if regulators know who has a legal right to water. A court fight to clarify rights along the Yakima River - a process called adjudication - has raged since 1977. Water users often resist calls to adjudicate rights in other parts of the state.

Meanwhile, attempts to fix this system at times have made it worse.

In 1993, the Legislature ordered the state to make metering of water a priority. Last December, a judge ruled that the state, claiming it had too few resources, wrongly ignored the law.

But the judge also accused lawmakers of "micromanaging" the state.

Consider: During the same biennium, some state lawmakers - including Chandler and Locke, who in 1993 was the House budget chairman - tried to raise the fee for processing water rights so the program could pay for itself. Some lawmakers also wanted to leash the Ecology Department and make it more efficient. Neither party wanted to support a fee increase unless the other did.

So lawmakers tied funding for water management to a fee increase. The bill failed.

"The whole thing backfired," said former state Rep. Nancy Rust, the Democrats' water expert at the time. "It just didn't work."

The result: Funding for the program that oversees water management was slashed, and the department staff was cut from 56 people to fewer than 20. Processing of permits slowed from 1,300 a year to a few hundred.

Applicants wait their turn

Carroll Whipple, a homeowner in Duvall, asked more than a year ago to draw water from a new well for a trout pond. Her application hasn't even been considered yet.

"I don't know what else I can do but wait my turn," she said.

Yet others get what they need. In 1998, state officials quickly approved access to ground water to keep Safeco Field green, saying that there was no competition for that water and that it was better than using city drinking water. The attorney representing the Mariner stadium: Charlie Roe, formerly the state's chief environmental lawyer.

Last summer, the state ruled that Willows Run Golf Course, partly owned by Microsoft co-founder Paul Allen, had to stop drawing 50 million gallons of water a year from the Sammamish River. The state said the property's water rights - not used from the early 1970s to 1994 when the course opened - had expired. Willows Run appealed and is allowed to continue drawing water unless a state hearings board rules otherwise.

Asked why lawmakers hadn't been able to fix the backlog yet, Locke said, "There are a lot of people who say that you need a boogeyman to point to. If you solve the problem, what's your rallying cry? Who is there to rant and rave against?"

Illegal use, spotty policing

Two years ago, Schlender, with Ecology, took a day trip to a Eastern Washington farming township. In one afternoon he saw 1,200-foot irrigation sprinklers spraying quarter sections with no water rights. He saw stacks of pipe where landowners planned to construct illegal waterlines. Meters were plugged up, not working or gone.

"There were people who thought they had a right but moved it illegally," Schlender said. "There were cases where water hadn't been used in five years or, in some cases, ever. There were cases where people were fed up waiting to change a right, so they just went ahead."

After the agency cuts of 1993, the Ecology Department had stopped policing water use.

Staffing since has increased from one person to six, but there remains little data showing how water is misused. Schlender conducted two dozen investigations in two years and issued $350,000 in fines - a single violation carries a fine of $100 a year - focusing merely on egregious cases. He said he's merely scratched the surface.

At that, enforcement seems selective, said Chandler. "They're doing damn good enforcement in my district," he said, "but they have not done that on both sides of the state."

Chandler pointed to Whatcom and Skagit counties, where up to 500 farmers, businesses and homeowners have drawn water without rights for decades, according to state records. The issue has gone unresolved for so long that the state's not sure how to address it. Attempts to pass bills in the Legislature granting amnesty repeatedly fail.

On Mercer Island, meanwhile, enforcement abruptly stopped after state Sen. Jim Horn, R-Mercer Island - angered by enthusiastic policing during a particularly dry summer - proposed making it legal for homeowners to draw water from Lake Washington. It didn't pass, but he's still trying.

State water managers "were so proud of themselves that they were going to fly over the lake and see who had green lawns and find out how they were keeping them watered," Horn recalled. "I'm thinking, `Is this what government is all about?' "

Craig Welch can be reached at 206-464-2093 or