§ 11.9 - Planning and Managing Water Resources

• Jurisdiction: Washington

§11.9 PLANNING AND MANAGING WATER RESOURCES

For eight decades, beginning with the enactment of the 1917 surface water code, water law administration has been vested exclusively in a state government agency or official. This exclusive authority included the implementation of comprehensive water planning statutes enacted in the 1960s and 1970s. A significant shift away from that state administrative dominancy has taken place because of legislation enacted in 1997 and 2009. With these enactments, the primary water resource implementation role, especially as to watershed planning, is now placed at the local level.

Although in an elemental sense water planning was implicit in the administration of the water codes of 1917 and 1945, the process of express comprehensive water planning designed to guide water rights allocation began in 1967. In that year, the Department of Water Resources, a predecessor agency to DOE, was empowered in a single relatively short subsection of RCW 43.27A.090 "[t]o develop and maintain a coordinated and comprehensive state water and water resources related development plan, and adopt, with regard to such plan, such policies as are necessary to insure that the waters of the state are used, conserved and preserved for the best interest of the state." RCW 43.27A.090(6).

Implementation of this section, with liberal funding by the legislature, was pursued through mid-1970. However, with the enactment of a new water planning program in 1971, planning efforts under the 1967 act ceased.

In 1971, the foundation of comprehensive water planning activities being pursued today was established with the enactment of the Water Resources Act of 1971. Attention is first directed to that act.

(1) Water Resources Act of 1971, Ch. 90.54 RCW—the foundation to modern water use planning

From a historical standpoint, the Water Resources Act of 1971 (WRA), codified in an amended form in Chapter 90.54 RCW, has provided the cornerstone policies for implementation of the water laws since its enactment. This 1971 legislation is extraordinarily important for at least five reasons. First, it mandated the establishment by DOE of "a comprehensive state water resources program which will provide a process for making decisions on future water resource allocation and use." RCW 90.54.040(1). Second, it directed DOE to become fully informed on all aspects, including physical, of the state's water resources. RCW 90.54.030. Third, it provided specific water policies of the state, called "fundamentals," RCW 90.54.020, which set forth public interest considerations that provide guidance to DOE, primarily, when it rules on various water-related applications and makes other water management decisions, such as rule making. Fourth, it established a preeminent state water allocation policy that all future allocation decisions shall be based on securing of "maximum net benefits" for the people of the state. RCW 90.54.020(2). Fifth, a second preeminent policy addressed both (1) the establishment of minimum flows for various streams and levels for lakes and (2) the attainment of high quality for all the state's public waters. RCW 90.54.020(3)(a)-(b).

The WRA directed DOE "as a matter of high priority" to develop and implement "in accordance with the policies of this chapter" the aforenoted "comprehensive state water resources program." This water planning program may be developed by DOE in segments so that "immediate attention may be given to waters of a given physioeconomic region of the state or to specific critical problems of allocation or use." RCW 90.54.040(1). The objective of this program, once again, is to "provide a process for...future water resource allocation and use." Id.

The "policies of the act" are contained in a series of "fundamentals" of state water policy that are mandated for use, primarily by DOE, in administering programs pertaining to the "utilization and management of the waters of the state." RCW 90.54.020. The WRA further directs DOE to "become informed with regard to all phases of water and related resources of the state." RCW 90.54.030. The primary emphasis of this mandate is to require DOE to become knowledgeable on the physical aspects of the state's water resources, e.g., by pursuing data collection. RCW 90.54.030(1), (2).

The primary intent of the WRA is twofold: (1) to aid DOE in making "public welfare" and "public interest" determinations required in the administration of the water code by amplifying upon the nature of the public interest to be considered through the enactment of "fundamentals" of state water policy; and (2) to provide a mechanism that would result in fully informed (in terms of both pertinent facts and state policy direction), well-reasoned decisions in the allocation and management of public waters in the future. See RCW 90.54.010.

(a) "Fundamentals"—state water policies

Among the aforenoted state water policy "fundamentals," two stand out because of their extraordinary importance in the implementation of water rights law, namely, (1) the "maximum net benefits" policy of RCW 90.54.020(2) and (2) the stream flow and lake level retention policy of RCW 90.54.020(3). Two other "fundamentals" are also worthy of special note. They are (1) the fundamental established by RCW 90.54.020(7), emphasizing the need to practice "efficiency [and] conservation" in water use; and (2) the fundamental set forth at RCW 90.54.020(9) that "[f]ull recognition shall be given in the...