TO: Chehalis Basin Partnership
FROM: Kahle Jennings
SUBJECT: Chehalis Basin Watershed Planning Issues
Watershed planning under RCW 90.82 provides for locally-led, cooperative efforts to assess water resource needs and develop comprehensive and effective solutions at the watershed scale that both protect natural processes and provide for human uses. Over the last three years the Chehalis Basin Partnership has accomplished a lot in terms of describing water, some of which has only served to reinforce how much we don't really know and how much more information is needed. The legislature, however, set a deadline that will not allow us to obtain all the information we might like to have before we are comfortable making recommendations on how water in the Chehalis Basin should be managed.
In order to represent Ecology's and the state's interests in the planning process I have asked the question "What does Ecology want to see included in the watershed plan for the Chehalis Basin?" Until such time that I obtain an agency response to this question, as Ecology's representative to the Chehalis Basin Partnership I have taken it upon myself to prepare a list of questions reflecting issues that I believe should be considered in order to develop a plan to effectively manage water. These questions represent my own personal effort to understand the situation regarding water in the Chehalis Basin based on my eight years of working on water issues there. It asks questions that, in my opinion, will lead to a better understanding of a very complex situation and will result in recommendations that will lead to meaningful and effective water management.
I present these questions to you for consideration during the next few months as we focus intensely on developing a plan to manage water in the Chehalis Basin. It is my suggestion that the Partnership and its working committees evaluate each question to determine possible benefits of including the issue in the water management plan, the costs or negative effects of including the issue, make a recommendation on whether or not to include the issue in the plan for the Chehalis Basin and explain why, or why not. If at any time during the process I hear that one or more of these issues are a high priority for the Department of Ecology I will make that known.
I have tried to organize the questions into general categories, but very often a question applies to more than one. Where it was obvious to me, I have indicated what other categories may apply by using brackets and italic print.
GENERAL
Will the Chehalis Basin plan describe water or manage water?
How will the plan deal with future water demand due to growth?
What does "Adequate water supplies" mean in RCW 90.54.010(a) which states "Adequate water supplies are essential to meet the needs of the state's growing population and economy."? Does adequate mean "water to do everything we want to (including being inefficient or wasteful)?" or does it mean "water to meet the highest priorities necessary to sustain our communities (without being inefficient or wasteful)?" [legal, policy]
RCW 90.82 requires planning units to develop plans consistent with existing laws and does not eliminate or modify any of Ecology's responsibilities for managing water assigned by the legislature under other water statutes. Will the watershed plan recommend changes that could affect how Ecology implements its legal mandates? (RCW 90.82.120 (1) Watershed planning developed and approved under this chapter shall not contain provisions that: (a) Are in conflict with existing state statutes, federal laws, or tribal treaty rights.")
WATER MANAGEMENT
Information, Monitoring and Data
Should the plan request that Ecology or some other organization monitor stream flows at all 31 of the control points where minimum in-stream flows were established in 1976? This would continue the work started in 2002 by the Chehalis Basin Partnership with the in-stream flow supplemental funding it received. What other funding could be pursued for this monitoring?
Should aquifers be mapped?
Should continuity between surface and ground water be estimated or mapped?
Where are the gaining and loosing reaches of the Chehalis Basin?
Managing water allocation records
With the number of water use claims, certificates and permits in the Chehalis Basin that represent an unknown amount of actual water use is adjudication an appropriate tool for clearing up questions about the amount of water legally put to beneficial use and seniority of water users? Are there other tools that could substitute for adjudication? [policy]
Should the plan recommend that the law be changed so adjudication can be done by some organization other than the courts? [legal]
Should the plan recommend that a special water court be established to settle water cases? [legal]
Should the plan include a recommendation that adequate funding be provided to Ecology to clear up the paper backlog?
Should the plan recommend that a separate water right administering organization other than Ecology be created?
Managing water
Should new methods of 'managing water' be developed such as computer models or water accounting systems?
What is the difference between computer models and water accounting systems?
Should a basin wide water accounting system be established that has the ability to calculate the results of cumulative water use on flows at any point in the basin?
Are flows from legally diverted water that are not used consumptively and return to the system through ground water recharge or surface runoff currently calculated or estimated and accounted for in the total quantity of water in the system, or are they ignored? Are they reallocated or held as a margin of safety to ensure there is always water in the river? Should any of these things be done? [legal]
Will the amount of water available for municipal or domestic use in the Chehalis Basin be sufficient to meet Growth Management Act projections?
Should water in basins that have been over appropriated somehow be returned to the system? How? [legal]
Should additional parts of the Chehalis Basin be closed to further water appropriation?
Should parts of the Chehalis Basin be opened up for water appropriation?
Should exempt wells be regulated or prohibited in areas that are closed to further appropriation of surface waters? [legal]
Should exempt wells be regulated or prohibited where established minimum in-stream flows are not being met? [legal]
Tracking water
Should water use be tracked? What is the best way to track water use?
What role should metering have in the Chehalis Basin? When? [legal]
What role should enforcement have in the Chehalis Basin? When? [legal]
Ecology started a water accounting system after the 1975 Basin 2 Assessment was completed. That work was not kept up to date. Would it help to bring the water accounting system up to date and manage it as a water-tracking tool?
Should actual water use be recorded and reported annually? [legal]
Who tracks how often regulatory in-stream flows are met and not met? Should they be tracked? Why or why not? What should the response be when regulatory in-stream flows are not met and who should respond?
Should sales of water rights and transfers be tracked and\or coordinated? Who should do it? [legal]
Should the plan explore having a water right disclosure form being made a regular part of a property sale just like a property condition disclosure is to protect the buyer? [legal]
Should the plan explore having title insurance also include water rights? Does it already? [legal]
Should the plan explore having water rights sales or transfers recorded against the property deed? [legal]
Using water wisely
What is the best use of water? Should water allocation be prioritized according to its best use? Who determines what the best use is, a water market based on the ability to pay, a local committee, the state, courts? [legal]
How should wasteful use of water be addressed?
Should the plan recommend water use efficiency requirements? If so, what form should those requirements take? What about a recommendation that water laws regarding water use be changed to include something akin to Best Available Technology (BAT) that is accepted in the field of water treatment? This would require users of state water to adopt the most efficient methods of using water. [legal]
Should the 'conserved water' made available by implementing the Best Available Technology be retained by the user, returned to the system to support in-stream flows or be reallocated? Some people think a water right transfers a quantity of water to an individual that they then control forever. Does it? Or does a water right give them the right to use water efficiently for a specific purpose as long as they are engaged in that activity? Also, does conserved water return to the state for public benefit or is it the property of the user? Should that depend on whether or not the system has been over allocated? Who 'owns' conserved water? [legal]
Should maintaining or augmenting basin flows be made a priority over other uses for reclaimed or conserved water? [legal, water quality]
Should maintaining or augmenting in-stream flows be made a priority over other water issues such as TMDLs that recommend removing return flows with some amount of pollutant loading? [legal, water quality]
LEGAL
Should the planning effort make any attempt to provide a local perspective on the ambiguity of existing water statutes (77.55, 90.03, 90.22, 90.54, and 90.82)? How should the plan work within these statutes?
Should the adjudication processes be streamlined? [water management]
Should adjudication be done administratively?
Should the responsibility for documenting a water right be placed on the person who believes they have a water right? [water management]
What liabilities might the state have if global warming reduces available water? [water management]
Does a water right guarantee water will be available? If the water is not available and a lot of money is invested to develop the infrastructure to use the water that has been allocated under a water right who assumes liability for the loss? [water management ]
Regarding the recent Sullivan Creek court decision - should poor water quality be used to condition flows? Under what circumstances? [water management]
Should water rights be for a 1) a specific use {for example to grow peas or to grow hay} or 2) for a class of uses {for example to grow crops: peas, corn, hay, pasture, whatever} as long as the total quantity of water authorized is not exceeded?
Should municipal water rights be considered to be 100% consumptive" If so, why the apparent contradictions in the reclaimed water law that require mitigation for all water rights downstream? How can these contradictions be resolved? [water management]
Should return flows be re-allocated? Can they legally be reallocated? [water management]
Can failure to meet minimum in-stream flows be mitigated by other actions? What? [water management]
The EPA approved temperature TMDL for the Upper Chehalis Basin says that no additional reductions in river flow should occur. Is this being factored into water right decisions? Transfers? Changes of use? Should it be factored into these decisions? What is the liability to Ecology and water users if it is not? [water management]
Can the Endangered Species Act (ESA) trump water right seniority (i.e. must water be provided for fish)? Should the plan pursue this?
HABITAT
Are regulatory in-stream flows established in 1976 too high, too low, or are they acceptable for sustaining healthy populations of fish? Why? [water management]
What is the most effective way to manage for fish? Can you set targets for numbers of returning fish and estimate the flows needed to produce that many fish? How do you account for other mortality factors (water quality, catch)?
Should the plan identify critical life stages of different fish species and the amount of flows that are needed to support those life stages? (That is what IFIM does.)
TRIBAL
Federally reserved treaty rights are senior to all others but they have not been quantified so does the state really know how much water in any particular basin with tribal interests is available for appropriation? How should this be addressed? [water management, legal]
Are usual and accustomed fishing rights a basis for a Tribal claim to water for in-stream flows necessary to ensure fish are available? (Bolt 2: no habitat/flow = no fish for the tribes)? [water management, legal]
WATER QUALITY
Ecology believes it would be best if development of detailed plans for implementing clean-up strategies identified in TMDLs were developed as part of the water quality component of the watershed plan. What is the best way to accomplish this?
Under TMDLs, in areas where a combination of point source
and non-point source pollution are responsible for water quality violations point sources are targeted for pollution reduction due to the regulatory authority under NPDES permits while non-point sources of pollution often receive less attention due to limited resources and uncertainty about the regulatory authority to clean up non-point sources. Should this approach be re-evaluated? What would be a more equitable and effective approach? (One approach could be to direct more attention towards cleaning up non-point sources exactly because of the uncertainty about whether or not those efforts will be successful and allowing point sources more flexibility exactly because they are regulated closely and have to self-disclose permit violations.) [legal]
This page created and maintained by Chehalis River Council
Send comments or questions to the: Chehalis River Council