Headwaters to Harbor: What are Water Rights? Why Does Lewis County Care?


Editor’s Note: This story is part of "Headwaters to Harbor," a project by The Chronicle to document the Chehalis River from Pe Ell to Grays Harbor while highlighting people and issues connected to the river along the way. Our coverage is compiled at www.chronline.com/Chehalis-River.

In water to population ratio, Lewis County seems above the bar for most of the American West. With a population of around 80,000, Lewis County has several lakes along with the Chehalis, Cowlitz, Nisqually, Newaukum, Skookumchuck, Paradise, Ohanapecosh, Tilton and Cispus rivers.

Los Angeles County in California, on the other hand, has a population of over 10 million and just four rivers. And despite the name of its most prolific basketball team, there aren’t many lakes there, either.

But the two have more in common than meets the eye where water is concerned. Like all states in the West, Washington has water laws that determine who gets water, how much, from where and when.

And as Jill Van Hulle, water rights specialist for Aspect Consulting puts it, “Lewis County is kind of a hotbed of water stuff.”

Home to the largest year-round water bank in the state owned by TransAlta and one of the two most highly regulated rivers in Western Washington — the Chehalis River — issues pertaining to water laws have been showing up in various county and city council meetings across Lewis County recently.

But water laws are complicated. And as municipalities decide they are something worth caring about, it’s worth asking some basic questions.


What is a Water Right?

Until the early 20th century, the state did not restrict any use of water from any body of water.

In 1917, Washington followed suit of other states in the West and established water laws.

From then on, to use water in quantities of over 5,000 gallons per day, users needed water rights.

Water rights allow for users to draw a certain amount of water from a certain body of water for a certain amount of time and are only granted for what the state considers “beneficial uses.”

Meeting the criteria of a beneficial use, as Mike Gallagher of the southwest region of the Department of Ecology’s water resources program said, is pretty easy, as most things water is used for are beneficial, like watering fields.

Of those interviewed by The Chronicle, Lewis County Special Projects Deputy Prosecuting Attorney Eric Eisenberg put the next key element of water rights in the simplest terms.

“The older your water rights, the better, the more superior your water right is to other people who want to use the water,” he said.

Water rights are categorized as either junior or senior.

Eisenberg illustrated this with a parable: John Q. Farmer is using well water from an aquifer for his blueberries, and he’s been doing so since 1960. Herman Homeowner bought land with another well on the same aquifer that he’s been using since 1982. Farmer’s rights are what the state considers senior water rights. Homeowner’s water rights are, therefore, junior.

The distinction decides who is entitled to the water when it becomes scarce. If the wells were running dry, Homeowner would lose his legal right to use the water before Farmer.

Tribes are the most senior water rights holders in the state. The Chehalis Tribe has been using the Chehalis River since time immemorial, and unlike nearly every other entity, has an unquantifiable water right to the river.

Water rights are also subject to what Eisenberg referred to as “relinquishment.”

Understanding relinquishment is key to understanding water banks.


What is a Water Bank?

Water rights work on a use-it-or-lose-it basis. Water rights holders have to report the amount of water they use back to the Department of Ecology. If they don’t use the amount of water their rights allot for, their rights can eventually be relinquished.

But there is one way to get around the use-it-or-lose-it rule, and it’s called a water bank.

Firstly, a water bank is not a physical storage facility with water or a big tank underground. It is an abstract concept in state law. When entities establish a water bank, their rights are held in the water bank without being subject to relinquishment, which allows the entity to lease its water rights out to others.

TransAlta’s water bank allows the company rights to 28,000 acre-feet of water per year from the Skookumchuck River whether it’s used or not.

One acre-foot is enough water to cover an acre in a foot of water. A 28,000 acre chunk over the Twin Cities area would touch Galvin, Schaeffer Park, Newaukum Golf Course and Claquato.

Cover that much acreage with a foot of water and you could fill about 217,234,047 bathtubs.

But, again, TransAlta isn’t just holding 28,000 acre-feet in a tank somewhere. That’s just the amount of water the company has the right to in a given year.

TransAlta’s water bank is the largest year-round bank in the state. The Oroville-Tonasket Irrigation District water bank in Okanogan County is larger, at 33,000 acre-feet, but this water is only available for the approximately 150-day irrigation season.

“The basic principle of the water bank is someone who owns the water rights puts it into the bank using an Ecology process. And Ecology treats that, makes a notation, that it is being used because it's being used in the bank,” Eisenburg said.

This allows the water bank holder to lease out its water rights. Lessees can then obtain water rights without the Department of Ecology noting them as taking water from what is legally available. And because water rights are difficult to get due to over-allotment of bodies of water, this means water banks can allow more entities and people to access more water.

That’s one reason why Lewis County Commissioner Lindsey Pollock asked Eisenburg to look into what it would take to establish a county water bank. Pollock also began to think there would be money for long-term infrastructure if the county had a water bank.

“And it turns out she was right, that now, there is a grant from the Department of Ecology in which you can apply to get a grant to create a water bank, to purchase water and to put in it. And so there is a grant out there that can provide up to $2 million in funding to do this,” Eisenburg said.

Another factor Eisenburg believes entered Pollock’s thought process is the Hirst Decision.

In short, this state Supreme Court ruling put the burden of determining water’s legal availability on counties, rather than the Department of Ecology.

“As a result of the Hirst Decision, it became increasingly clear that, in the long run, as water becomes more appropriated by users and perhaps scarcer due to things like climate change, that there might be a time when water would run out for the type of development that counties typically would like to occur,” Eisenburg said.

A water bank would be one way to avoid losing access to water, and could make water more available for residents and other entities.

In late April, Lewis County released a solicitation for a request for proposals by consultants to establish a water bank. However, this doesn’t signify the “capital C County” as being totally gung-ho, as Eisenberg put it, it just means they’re looking into it. Commissioner Lee Grose is still hesitant about the idea and wants more information. The request for proposals does not bind the county to creating a water bank, rather it outlines the costs and effects of establishing one.

The final factor that spurred on Pollock’s interest was likely TransAlta. As the steam plant slowly closes, the company’s water rights may be well over what it uses, and so its water rights may become available.

The best way to establish a water bank, Eisenburg said, is to find people who are no longer using their water rights and obtain them before they become relinquished to the state. The best place to find unused water rights, as he understood it, is with long-standing family farms where the younger generations are using the land and water less than those before them.


The Water Frontier

Those involved in water law have repeatedly heard the Mark Twain quote, “Whiskey is for drinking, water is for fighting.”

Getting legal access to water is hard. Even once obtained, water rights are tricky.

In 1976, Washington implemented what’s called an “instream flow regulation” on certain rivers. The Chehalis and Dungeness basins are the only ones in Ecology’s southwest region where this rule applies. Basically, it means the river itself gets a water right to maintain a certain water level. Like all water rights, the ones established before instream flow regulations — so, prior to 1976 — are senior.

On the Chehalis River, 93 water users have junior water rights to the instream flow regulation. For the last few summers, river levels on the Chehalis have dropped below those minimum regulation heights, and those 93 junior water right holders had their rights to the water curtailed.

Gallagher said one of the triggers for curtailment is 80-degree weather in April.

“Which is kind of unusual, but we’ve had that the past few years. That melts the snow in the Bald Hills and the Willapa Hills a lot faster,” Gallagher said. “And when that’s gone, it goes downstream pretty quick to the ocean and you can’t get it back.”

In those warm years — fortunately, temps didn’t get that hot this April — the irrigation season on the Chehalis River has to be cut short for those junior water rights holders. If two farmers are neighbors and one obtained their water right in 1975 and the other obtained it in 1980, the first may be watering crops throughout the summer, while the other will have to stop when Ecology sends them notice.

“We think of laws to make things better, to make things equal, to make things balanced across the board. That's how we envision laws,” Gallagher said. “But, water law is not equal and it's not fair. And that’s the way it is.”