CHEHALIS BASIN PARTNERSHIP

CHEHALIS BASIN PARTNERSHIP

MUNICIPAL WATER SYSTEM INCHOATE WATER RIGHTS ANALYSIS PROJECT

I. INTRODUCTION AND PROJECT DESCRIPTION

This project has been conducted in response to the Chehalis Basin Partnership’s (The Partnership) commitment to address municipal water supply issues as part of its Watershed Planning and Management Phase IV Implementation. Analysis of municipal water provider rights falls under Watershed Management Plan Action 3 of the Partnership’s Detailed Implementation Plan. Action 3 states that the Partnership will, “address … municipal water rights by (1) estimating quantity of water represented by inchoate rights [held by Group A municipal water purveyors] and (2) clarifying how such rights can be reconciled with protecting instream flow needs and can be affected by water conservation programs.” This objective is a required watershed plan element under state law.

Phase One of this project involved reviewing Water System Plans and Small Water System Programs submitted to the Washington State Department of Health by Group A public water systems[1] in the Chehalis Basin order to identify those rights that may be inchoate.

Phase Two consisted of identifying options to address how municipal water rights might be used to address instream flow needs.

II. PHASE ONE

Phase one consisted of a screening process to identify the largest Group A municipal water purveyors in the Basin and a more detailed examination of the situation of each major purveyor based on their Water System Plan and water rights data. The objective of this examination was to determine which municipal water rights might be considered inchoate.

This study applied the term “inchoate water rights” to mean those rights which are surplus to water demand as identified by the municipal water systems themselves through the water system planning process required by the Washington State Department of Health (DOH) under WAC 246-290[2].

The screening was performed using a data base of the Group A systems in the Chehalis Basin provided by DOH. Of the 180 Group A public water systems in the DOH data base, the project selected 108 systems for further examination. The screening process used five fields in the DOH data base to identify larger systems. The five fields and the thresholds used to identify the 108 larger systems are as follows:

Capacity: The number of gallons per minute that the system (or a particular source) is able to deliver. (selected systems with a value of >99)

Full Time Resident Population: The number of residents that are served by the system for more than 180 days per year. (selected systems with a value of >99)

Maximum Total Population: This is a value that reflects the population count that DOH uses for coliform sampling considering residents and others. (selected systems with a value of >99)

Total Connections: The current number of active connections – a connection remains in "active" status until it is physically removed from the system. (selected systems with a value of >99)

DOH Approved Service Connections: The number of connections that DOH has approved for the system. (selected systems with a value of >99)

Systems with 1000 or more connections must prepare and submit a Water System Plan (WSP) to DOH for approval. There are 10 such systems in the Chehalis Basin. They are: Aberdeen, Centralia, Chehalis, Elma, Grays Harbor County Water District No. 2 (Central Park), Hoquiam, Montesano, Ocean Shores, Tumwater, and Westport.

Systems with fewer than 1000 connections are required to prepare a Small Water System Management Program (SWSMP) but not to submit it to DOH; although SWSMPs are submitted in some instances. Attachment A provides additional information on which entities must prepare and submit WSPs and SWSMPs.

A total of 38 of the 108 systems of interest in the Chehalis Basin have submitted either a WSP or a SWSMP. Attachment B indicates which of the 108 systems had submitted plans to DOH and which had not.

In order to determine which systems might hold rights that are inchoate/surplus, the project examined the water rights data for all systems on the list of large Group A systems that have submitted plans to DOH and also used water rights information from the Water Rights Application Tracking System (WRATS) provided by the Washington State Department of Ecology (DOE).

For each of the systems for which either WSP or SWSMP was available for review, this project prepared a data sheet which (in most cases) includes the following information:

· water right summary (for primary rights only, not supplementary rights[3])

· the beginning and ending years of the 20 year planning period

· the population, number of connections, or units served in the first and final years

· the average and maximum daily demand for the first and final years

· the surplus or deficit of instantaneous water rights (Qi) relative to the average and maximum daily demand in the first and final years

· the surplus or deficit of annual withdrawals relative to the annual limit on water withdrawals (Qa) in the first and final years

· comments on the plan covering adequacy of rights, uncertainties, special circumstances, etc.

In instances where a system does not have the potential to impact instream flows (e.g. Westport) or is primarily industrial/commercial (e.g. Transalta Generation) this project did not perform a complete surplus/deficit analysis and therefore the data sheets do not include all the elements listed above.

The data sheets for each system are included as Attachment C. Attachment C also provides information on the methodology used to produce the data on the providers. As part of this project, the Partnership offered each municipal water purveyor the opportunity to review their data sheet, verify the accuracy of the information, and identify any points of potential disagreement. Attachment D contains a sample transmittal letter and information on which systems responded to the Partnership’s request for comment.

The table following page 4 provides summary quantitative information on each of the 38 municipal water purveyors covered by the data sheets. In cases where water system purveyors provided updated information in the course of their review of the data sheets, this updated information is reflected in the table.

The data in this table indicate that of the 32 purveyors for which a full or partial surplus/deficit analysis was performed 24 expect to have sufficient of annual rights to cover their needs at the end of the 20 year period covered by their plan, and one[4] does not have an annual quantity assigned. Another system[5] would have a slight deficit in rights relative to its annual demand; however, this system purchases approximately half of its water from another system, and therefore it is able to meet its demand without exceeding its rights. In summary, this analysis indicates that only 6 of the systems covered in this table are expected to have a deficit in annul rights at the end of their 20 year planning period.
III. PHASE TWO

Phase Two required the development of a list of options to address how surplus municipal water rights might be used to address instream flow needs. The Partnership has already made a significant effort to understand general issues pertaining to municipal water supply in its Municipal Water Supply issue Paper [6], and this document was an important beginning point for this project. Discussions with the Partnership’s Steering and Technical Committee provided valuable direction. DOE’s policy on mitigation for adverse impacts of water use was also a useful source of ideas [7]

It is obvious that from a stream flow perspective, the best thing that can happen with respect to surplus water rights (municipal or any other category of right) is that they remain unused -- that water simply not be withdrawn. This could happen in three ways, all of which are under the control of the holders of the rights. The three possibilities are: informal (rights are not used but remain on paper, i.e. not relinquished), by relinquishment, or by transferring surplus rights to a water right trust program.

The first of the three is most likely to occur in reality. The second is less likely -- there is no incentive for a right holder to relinquish rights; although in some instances right holders have agreed to do so in the context of obtaining other goods, such as agreement by the DOE to allow a change in the point of withdrawal or to grant a new right. The third is not likely at all, because at present there is no active water right trust program in the Chehalis Basin. Moreover, since inchoate municipal rights are not at risk of lapsing via lack of use, there is no reason for a municipal water purveyor to participate in a trust program if one existed.

There are theoretically some options for management of municipal (and other) rights that could benefit streamflows; although these do not necessarily involve inchoate rights but rather ways in which active rights are used or managed. A list of candidate options (not in priority order) and a brief discussion of each follows:

(1) Targeted water rights planning

(2) Water conservation planning

(3) Coordination between watershed planning/growth management planning

(4) Reviewing effectiveness of existing stream flow protections

(5) Water rights trust program

(6) Limit withdrawals by junior right holders/emergency conservation

(7) Shifting from surface to groundwater withdrawals

(8) Withdrawals from deep aquifers

(9) Hydraulic continuity study

(10) Improved coordination between Watershed Planning and Water System Planning

(1) Targeted water rights planning: The Partnership could identify stream segments (or groups of segments) that experience chronic low flows, set priorities among these, and develop water right related plans with specific strategies for each impaired segment or group of segments. It would be best to undertake such planning in areas where the Partnership could expect cooperation from a local partner, which could be governmental or an NGO. Some of the following paragraphs discuss actions that might appear in targeted water rights plans.

(2) Water conservation planning: Water conservation has excellent potential to benefit stream flows. There is a direct and immediate effect with respect to surface water withdrawals and in the zone of hydraulic continuity conservation by groundwater rights holders may also benefit streamflows. All Group A systems are required to have a water conservation program in their WSP or SWSMP. The quality of these and the effectiveness of their implementation may be expected to vary. The partnership could review the existing plans, identify and publicize good practices that could be shared, and assist communities to identify funding for conservation.

(3) Coordination between watershed planning/growth management planning: Recommendation 14 in the Municipal Water Supply issue Paper (“Connecting water supply planning to growth management or comprehensive planning”) reads (in part) as follows: ”Any area designated for urban or suburban development should have the ability to be served by some sort of municipal water system. There is currently no mechanism to ensure that this occurs ...” The Partnership could work with DOE, DOH, and counties (or cities) to develop a system to address water and development issues in a coordinated manner.

(4) Reviewing effectiveness of existing stream flow protections: Some rights in the Chehalis Basin are conditioned to protect stream flows. The Partnership could determine how well these conditions are working in fact. If they are issues of concern, the Partnership could work with the right holder and the DOE to make improvements.

(5) Water rights trust program: The Partnership could work with DOE and other partners to develop a water rights trust program with incentives that would cover the entire basin or specific parts. Such a program would offer only transitory benefits to streamflows unless transfers to the trust were permanent. Such a program would be futile unless it were accompanied by a DOE policy that assured that the retirement of rights did not result in new authorizations to withdraw water. The program must include tangible incentives for right holders, because without such incentives there would be no reason for right holders to place rights into a permanent trust.

(6) Limit withdrawals by junior right holders/Emergency Conservation: The Department of Ecology has the authority to protect streamflows in the basin by limiting withdrawals by water rights with priority dates more recent than March 10, 1976, which is the priority date of regulatory instream flows. This was discussed in the Chehalis Basin Watershed Management Plan Instream Flow Issue Paper, Supplemental Section IV, pages IV-21-38. There are exceptions to this authority for domestic use. How this exception might impact municipal water systems is unknown. The Partnership could encourage DOE to exercise this authority; however, DOE is not known to have used it in the Chehalis Basin in the past and may be reluctant to do so. Even if this authority is not actually used, it could be one important basis underlying voluntary conservation in the basin during low flow periods. In other areas of the state and the country, voluntary water conservation by businesses and ordinary citizens has been very successful when the public has been called upon to conserve water and is provided with compelling reasons to do so. The Partnership could encourage the creation of a voluntary conservation program that would combine public information, public education, and a system of public notification in parts of the basin where low flow conditions justify extra efforts to conserve. Such efforts could be over and above the normal conservation programs that municipal purveyors are required to build into their system plans under DOH planning guidelines. This option follows from the Chehalis Basin Watershed Management Plan Water Quantity Issue Paper[8], which recommended that Ecology, “Increase enforcement of existing laws to support voluntary efforts. [9]” For this option to be effective, means would have to be identified to address concerns that conserving water would place a right in jeopardy of relinquishment.

(7) Shifting from surface to groundwater withdrawals: Changing surface water withdrawals to groundwater withdrawals can increase stream flows. Some municipal systems in the Basin have already abandoned surface water sources in favor of groundwater. Generally this has been driven by the costs of complying with the Surface Water Treatment Rule. There may be a few additional opportunities to make such changes, and the Partnership could identify and encourage them. This would require developing a list of systems using surface water and a review of stream flow data to determine if the withdrawals could contribute to low flows. Such information might be part of a targeted water right plan (see option (1) above). There would also have to be available well sites, funding to make the change, and knowledge of hydraulic continuity between surface and ground water. The last is needed to be sure that the cost and effort of shifting from surface to groundwater withdrawal would actually have the desired effect.

(8) Withdrawals from deep aquifers: Most municipal withdrawals are from groundwater. In instances where these withdrawals are from a groundwater layer that connects to surface water, such withdrawals could be expected to diminish stream flows. Withdrawing from deeper aquifers could benefit stream flows; however to be sure that this was worth the investment, it would be necessary to understand the relationship between surface and the various groundwater layers. The costs of drilling deeper wells and increased pumping would also be issues.

(9) Hydraulic continuity study: Options (7) and (8) require knowledge of the continuity between surface water and groundwater. To implement these options, a study of hydraulic continuity must be conducted, either basin wide or in priority areas. This issue was addressed in the Chehalis Basin Watershed Management Plan[10].

(10) In addition to the options set forth above, streamflow protection very likely would benefit from improved coordination between Watershed Planning and Water System Planning. Some specific suggestions follow:

· Annual water system plan review: The Final Bill Report for HB 1338 states that: “DOH must annually compile lists of water system plans to be reviewed in the next year and consult with certain other state agencies to identify watersheds where further coordination between system planning and watershed planning is needed and must develop a work plan to accomplish that coordination.” The Partnership could review and comment on the work plan and could request DOH to provide it with a copy of the annual list of Chehalis Basin plans. The Partnership could review the annual list and request coordination for any systems whose rights have the potential to affect stream segments with chronic low flows.

· Rights transfers: The Final Bill Report for HB 1338 indicates that inchoate municipal water rights can be transferred under certain circumstances. The Partnership could request that DOE notify them when such transfers are requested and afford them the opportunity to comment. The Partnership could use this opportunity to assure that transfers will not have an adverse impact on instream flows and that appropriate mitigation is required.

· Water rights review: The Memorandum of Understanding between DOH and DOE on water system plan review and rights applications provides that DOE will comment on the water rights self-assessment in all Water System Plans and Small Water System Plans that are submitted to DOH. The intent is that DOH will take advantage of DOE’s expertise on water right issues and as a result approved plans will be authoritative documents with respect to the rights held by Group A water systems. The Partnership could request that it receive a copy of DOE comment letters on water system plans and that it be afforded the opportunity to comment on rights issues before plans are approved.

· Significant increases in municipal withdrawals: The Partnership could request that DOH and/or DOE afford the Partnership the opportunity to comment when a system plan or other information indicates that a significant increase in withdrawals by a municipal water system is in the offing. If the rights in question are junior to instream flows the Partnership could advocate that the increased withdrawals be conditioned to require mitigation and that they be interruptible when regulatory flows are not met.

Resources:

Water Quantity Issue Paper, Chehalis Basin Watershed Management Plan Supplemental Section IV – Issues/Recommendations, pages IV-2-20

Instream Flow Issue Paper, Chehalis Basin Watershed Management Plan Supplemental Section IV – Issues/Recommendations, pages IV-21-38

Hydraulic Continuity Issue Paper, Chehalis Basin Watershed Management Plan Supplemental Section IV – Issues/Recommendations, pages IV-39-41.

Municipal Water Supply Issue Paper, Chehalis Basin Watershed Management Plan, Supplemental Section IV – Issues/Recommendations pages IV-43-51

The entire Chehalis Basin Partnership Watershed Management Plan, including the sections noted above can be accessed at the following web address:

http://www.co.grays-harbor.wa.us/info/pub_svcs/ChehalisBasin/Index.html
IV. ATTACHMENTS

C. List of the 108 larger Group A municipal water purveyors in the Chehalis Basin

D. WAC 246-290-100 Water system plan, page 41 and WAC 246-290-105 Small water system management program, page 45

E. Data sheets for the 38 large Group A municipal water purveyors which have submitted Water System Plans or Small Water System Management Program to the Washington Department of Health and a description of the methodology used to produce the data.

F. Sample of the transmittal letter that the Chehalis Basin Partnership used to provide data sheets to purveyors for verification and comment.

G. The Chehalis Basin Partnership Watershed Management Plan, Supplemental Section IV – Issues/Recommendations, Municipal Water Supply issue Paper. Note: Only the section of this issue paper entitled “What are some alternative actions to address the municipal water supply issue?” is included in this attachment.

H. May 31, 2006 letter from Tom Loranger, Washington Department of Ecology to the “Chehalis Basin Planning Group,” Subject: General Approaches to Mitigation in the Chehalis”

ATTACHMENT A:

The list that begins on the following page is the result of screening to identify the larger municipal water purveyors in the Chehalis Basin. The 108 systems on this list were selected from a list the 180 Group A systems in the Chehalis basin that was provided by the Washington State Department of Health (DOH). The screening process used 5 fields in the DOH data base to identify the larger systems:

Capacity: The number of gallons per minute that the system (or a particular source) is able to deliver. (systems with a value of >99 are included on the list)

Full Time Resident Population: The number of residents that are served by the system for more than 180 days per year. (systems with a value of >99 are included on the list)

Maximum Total Population: This is a value that reflects the population count that DOH uses for coliform sampling considering residents and others. (systems with a value of >99 are included on the list)

Total Connections: The current number of active connections – a connection remains in “active" status until it is physically removed from the system. (systems with a value of >99 are included on the list)

DOH Approved Service Connections: The number of connections that DOH has approved for the system. (systems with a value of >99 are included on the list)

The list indicates that 38 systems had submitted plans to the Washington Department of Health as of July 31, 2006. This project reviewed all 38 of those plans.

System Name	System Type	Status
ABERDEEN, CITY OF	Community	Reviewed
AMERICAN HERITAGE CAMPGROUNDS	Transient Non-Community	No plan submitted
BAY CITY SAUSAGE COMPANY	Transient Non-Community	No plan submitted
BLACK LAKE BIBLE CAMP & CONF CTR	Community	No plan submitted
BLACK LAKE ESTATES	Community	Reviewed
BLACK LAKE GROCERY	Transient Non-Community	No plan submitted
BLACK LAKE WATER CO LLC	Transient Non-Community	No plan submitted
BOISTFORT VALLEY	Community	Reviewed
BRIGGS NURSERY INC	Non-Transient, Non-Community	Reviewed
BUCODA WATER DEPT	Community	Reviewed
CARRIAGE CLUB ESTATES	Community	No plan submitted
CEDAR CREEK CORRECTIONS CENTER	Community	No plan submitted
CEDAR RIDGE ESTATES	Community	Reviewed
CENTRALIA UTILITIES	Community	Reviewed
CHEHALIS WATER DEPARTMENT	Community	Reviewed
CHERRY BLOSSOM EST	Community	No plan submitted
COHO CAMPGROUND	Transient Non-Community	No plan submitted
COLUMBUS PARK	Community	No plan submitted
COSMOPLOIS -- gets water from Aberdeen	Community	Reviewed
COUNTRY ESTATES	Community	No plan submitted
D JS COUNTRY MARKET	Transient Non-Community	No plan submitted
DRY SORT DOMESTIC	Non-Transient, Non-Community	No plan submitted
EAGLE TRUCK PLAZA NO 71	Transient Non-Community	No plan submitted
ELMA COUNTRY CLUB	Transient Non-Community	Reviewed
ELMA REST AREA	Transient Non-Community	No plan submitted
ELMA, CITY OF	Community	Reviewed
EVERGREEN SHORES	Community	No plan submitted
EVERGREEN SPORTSMENS CLUB	Transient Non-Community	No plan submitted
FARM BOY DRIVE IN	Transient Non-Community	No plan submitted
FIELD OF DREAMS	Community	Reviewed
FIRST BAPTIST CHURCH OF TENINO	Non-Transient, Non-Community	No plan submitted
FOOD MART 01 380	Transient Non-Community	No plan submitted
FORESTVIEW SENIOR 55+ COMMUNITY	Community	No plan submitted
FRIENDS LANDING	Transient Non-Community	No plan submitted
GRANDVIEW VALLEY ESTATES	Community	No plan submitted
GRAYS HARBOR CO WATER DIST 1	Community	Reviewed
GRAYS HARBOR CO WATER DIST 2	Community	Reviewed
GREENWOOD MOBILE HOME PARK	Community	Reviewed
GUNDERSON WATER WORKS	Community	No plan submitted
HAMILTON, AL	Transient Non-Community	No plan submitted
HARRISON RV PARK	Transient Non-Community	No plan submitted
HIGHWAY 6 CHEVRON	Transient Non-Community	No plan submitted
HOQUIAM WATER DEPARTMENT	Community	Reviewed
LAKE ARROWHEAD	Community	Reviewed
LAKE LUCINDA COMMUNITY CLUB	Community	Reviewed
LAKELAND MANOR	Community	No plan submitted
LAKESIDE MOBILE PARK	Community	No plan submitted
LENETS MOBILE ESTATES	Community	Reviewed
LEWIS CO WATER DISTRICT #2	Community	Reviewed
LEWIS COUNTY SEVENTH DAY AD