… and water’s for fighting over. Attributed to Mark Twain, this legendary quote has been repeated for over a century.
Legendary for good reason. The 2017 Legislature proved it again as a “single drop of water” stalled the passage of a state budget with $4 billion of capital projects lined up and ready to hit the ground running.
Controversy about that single drop of water, not the merits of the capital budget, is to blame for the delay.
I attended a water law conference in Seattle soon after the Legislature’s recent inaction. One speaker, a water law attorney (and lobbyist), said he asked elected representatives from all interests, “What ideas do you have that would help solve your opponent’s problem?” He claimed not one person he spoke with had a response for him.
The ideas at this particular conference were flying fast and furiously during the networking breaks, as was the storytelling with each panel discussion. I believe representatives from all interest groups were in attendance, including agriculture, tribes, municipalities, rural development and the environment — and most were frustrated that the wisdom of people whose careers have been devoted to water resource policy wasn’t more tapped by legislators.
One might think the Legislature can rewrite outdated laws to resolve modern issues. This might work if the legislators doing the writing have extensive experience with the issue at hand.
With water management as volatile as it always has been, where a clause or the use or absence of something as simple as a comma has required years of litigation and the Washington Supreme Court to resolve, the rewriting must be done very carefully.
This year is the 100th anniversary of when Washington began officially regulating water according to the “prior appropriations doctrine.” Also known as “first in time, first in right,” the doctrine’s origin is in mining claims where whoever got there first had seniority over everyone else.
In 1917, booming agriculture and booming cities had been in conflict for years with regard to who had the most senior right to capture the water in streams and rivers all over the West.
The Legislature at the time did its best to write a clear law to settle the matter legally.
In 1945 — 28 years after that initial law regulating streams — our Legislature applied the same requirements to wells and groundwater.
The result, of course, has been state and local agencies interpreting those laws as the region’s society evolved to encompass everything from the aerospace industry to declining salmon runs.
Fast forward to today and disputes over water management have come to a head, with one after another court challenge of agencies’ interpretations of those commas and clauses. Many of these challenges are intense enough to make their way to the state Supreme Court, resulting in more than a half-dozen pivotal judgments in recent years.
It turns out that in weighing the power of the Legislature and the court, the law as written is not the last word. Supreme Court cases are what rule the day, literally. It’s the job of those justices to uphold the law — as they interpret it. Whether loosely or conservatively, is up to the Supreme Court.
For example, in one case it was decided that every single drop of water must be accounted for (the “one molecule” rule).
Another determined that impacts on senior water rights from junior users can be remedied only with new water (“in-kind”), in the same geographic location (“in-place”), and during the entire time the impact could be felt (“in-time”).
I understand these judgments as following the letter of the law written a century ago. My concern is that the issues of 1917 — and even 1945 — are very different from those today.
Today we have rapidly dwindling resources, relationships and communities to maintain … as well as rational minds and new technologies.
Yet, it’s political football season and we’re in overtime of the Superbowl — with water as the football.
This week in the Northwest is not unlike the drought of 2015, when water couldn’t be more important. Literally, with regard to the heat wave and smoke from hundreds of wildfires, and figuratively, like that political football being thrown hurled from side to side.
We’re in the middle of more than one heat wave and everyone’s thirsty for a solution. Let’s get more veteran water managers on the field.
Water shouldn’t be for fighting over. Water’s for drinking, farms, fish and a long list of other necessities.
For more about the state agency commemoration of 100 years of water law, see www.ecy.wa.gov/programs/wr/hq/waterlaw-100.html.
For the 2017 water year on Aug. 6 (starting last Oct. 1):
• In Sequim, cumulative rainfall = 14.8 inches (most recent rain recorded was a trace level on June 17)
• Dungeness River at Mile 11.8, flow = 270 cfs (typical flow for early August)
• Bell Creek flow into Carrie Blake Park = dry; at the mouth = =N:E= cfs. (1 cfs is just under 650,000 gallons per day)
Ann Soule is a hydrogeologist immersed in the Dungeness watershed since 1990, now resource manager for City of Sequim. Reach Ann at email@example.com or via her blog at watercolumnsite.wordpress.com.