U.S. Water News Online
OLYMPIA, Wash. -- Thurston County Superior Court Judge Richard Hicks has ruled that the Department of Ecology must implement a 1993 statute requiring metering of water use throughout the state. The water metering statute was adopted as part of a larger salmon recovery package and is seen by environmental and fishing groups as an essential element in wisely managing the state's water resources for the benefit of both salmon and people.
In his ruling from the bench, Judge Hicks said metering "is a necessary step to bring us out of the dark and into the light" as the state deals with managing "this most precious resource." Judge Hicks also denied a motion by the Department of Ecology to dismiss the environmental and fishing groupsÕ claims.
In the lawsuit, the environmental and fishing groups claimed that (1) the Department of Ecology's existing water metering rule violates the statute; (2) Ecology violated the statute by failing to require metering of new and existing surface water rights; (3) Ecology violated the statute by failing to require the metering of new and existing groundwater rights; and (4) Ecology violated the statute by failing to prioritize metering ahead of other work as required by the statute.
Judge Hicks ruled in favor of the environmental groups on the first two claims, ruled that existing groundwater rights must be metered where salmon are at risk, and scheduled a fact finding hearing to determine the extent to which Ecology must give priority to water metering work.
In perhaps the most significant part of his ruling, Judge Hicks determined that existing groundwater use must be metered in areas where salmon stocks are critical or depressed. The judge noted that groundwater pumping can diminish stream flows in areas where the groundwater is connected to surface water. He also noted that state law makes surface water rights superior to groundwater rights and that the groundwater code specifically adopts the provisions of the surface water code where the water metering statute is found. Under these circumstances, Hicks concluded that existing groundwater rights must be metered to give full effect to the 1993 metering statute.
Regarding the environmental and fishing groups' final claim that Ecology has failed to prioritize metering ahead of other work as required by the statute, Judge Hicks scheduled a fact finding hearing in March to determine exactly what staffing resources Ecology has available to implement the statute and how that work should be integrated into the agency's overall work plan.
"This is an important victory for salmon," said Michael Rossotto of the Washington Environmental Council, one of the organizations that brought the suit. "Trying to restore salmon without knowing who is using water and how much they're using is like trying to balance your checkbook without knowing how much you are spending. You need certain basic information to do the job right, and in the case of providing enough water for salmon, metering is how you get that information."
"It is appalling that Ecology has refused to implement this basic water management law for the past seven years," said Todd True of Earthjustice Legal Defense Fund, the attorney for the plaintiffs in the case. "If we are going to meet the challenge of protecting and restoring salmon, state agencies like the Department of Ecology have got to get off the sidelines and into the ballgame," he concluded.
"All we asked Ecology to do was what the law has required it to do for the last seven years," said Katherine Ransel of American Rivers, "but we were stonewalled. Everyone knows that metering is the first step toward sound water management. It not only gives users the information they need to be more efficient, but it's also a fairness issue. Yakima basin irrigators recently called for universal water metering and enforcement not only because it is good management, but because people who comply with their permits should not be at an economic disadvantage because some people don't."
"Depleted streamflows are a major factor contributing to the decline of salmon stocks throughout the state," said Rob Caldwell of the Center for Environmental Law and Policy. "Hundreds of streams in the state currently have salmon stocks that are depressed or critical in part because of inadequate instream flows. In order to solve this problem, we need to know how much water people are using and that's what this law and this lawsuit are about. Considering the economic benefit water rights holders derive from their free use of the public's water supply, it's really very little to ask them to account for how much they're using," said Caldwell.
Salmon, steelhead and bull trout are all now listed in various parts of the state under the Endangered Species Act. One of the factors contributing to their dire straits is a lack of water in streams at certain critical times during their life cycles. One of the reasons these flows are below levels needed for fish is because there is too much water being diverted from the rivers and streams and withdrawn from groundwater near these water bodies. In 1993, the legislature passed a law requiring the metering of water use as part of a larger salmon recovery package. The thinking was that the critical first step in water management was to know how much water was being used and by whom. Without this information, it would difficult or even impossible in many situations to promote water conservation, identify illegal use of water, resolve conflicts between various water users, and provide enough water for salmon and steelhead.
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