Counting every drop: measuring surface and ground water in Washington and the West.

• Author: Lindsay, Stephanie

1. INTRODUCTION II. WATER CONSUMPTION AND WASTE A. Agricultural Use B. Urban Use C. Salmon III. SOURCE METERING IN WASHINGTON A. The Beginning of the Source Metering Statute B. The Current Source Metering Statute IV. SOURCE METERING IN OTHER STATES A. Source Metering in Texas B. Source Metering in Kansas C. Source Metering in Oregon V. THE BENEFITS OF SOURCE METERING A. Concerns over Source Metering B. Climate Change VI. CONCLUSION I. INTRODUCTION

   In autumn 2002, thousands of decomposing chinook salmon, a threatened species under the Endangered Species Act, (1) lined the dry river bed of the Klamath River and permeated the air with the smell of unnecessary death. (2) It was the worst fish kill in American history, with 34,000 to 70,000 adult fish carcasses lining the banks of the Klamath River for thirty miles. (3) Although these salmon perished due to two fish pathogens, (4) a contributing factor was a shortage of water in the Klamath River. (5)

   In the last five years, virtually every region of the United States has experienced a water shortage and, by 2013, at least thirty-six states anticipate some sort of water shortage. (6) Shortages occur because virtually every aspect of American life ties itself to water, with vast amounts devoted to producing electricity, growing food, manufacturing household goods, and serving other personal uses. (7)

   Although water shortages have long occurred in the United States, evidence suggests these shortages will continue to worsen, especially in the arid West. (8) Inadequate implementation of the doctrine of prior appropriation, the most popular water system in the western United States, (9) exacerbates this continued decline. (10) First, the doctrine gives priority to the earliest water users; (11) thus, if a shortage occurs, the state dispenses water in the order it granted permits and cuts off the most recent users. (12) Second, a water user may divert and use as much water as the diverter can put to "beneficial use." (13) Thus, under the prior appropriation system, the state grants each user a certain allocation of water which the user may not exceed, and which must be put to beneficial use. (14) However, because states largely have failed to measure the amount of water a user diverts, a process known as "source metering," (15) it is unclear whether users are complying with the conditions of their state permits.

   In 1993, Washington became the first western state to require the measurement of virtually all surface water withdrawals, (16) allowing the state to determine the amount of water diverted from rivers and effectively manage water supplies. (17) The Washington legislature created this source-metering law, part of a larger package aimed at promoting salmon recovery, to ensure compliance with water appropriation permits, protect instream uses, and help determine whether the state has water available for appropriation. (18) After fifteen years and multiple revisions, the statute appears to have made the state's management of water more efficient. (19) However, no other western state has followed in Washington's footsteps.

   In light of climate change, all western states should adopt source metering. One study suggests that in the West, "no other effect of climate disruption is as significant as how it endangers ... already scarce ... water suppl[ies]." (20) Climate change influences water supplies mainly by affecting precipitation. (21) As temperatures rise, less snow falls in the West and snowpacks shrink, making less water available. (22) In Washington, on the other hand, source metering has helped to leave more than 300,000 acre feet of water in streams. (23) Because source metering leaves more water in streams, it may be the most effective tool to ensure the efficient functioning of the prior appropriation doctrine in a climate-changing world.

   Kansas and Texas have implemented some form of source metering, mainly to deal with water shortages. (24) Additionally, WaterWatch of Oregon, a fiver conservation group in the western state of Oregon, proposed a state bill to require source metering throughout the state, but the bill died in the 2007 state legislative session. (25) Curiously, the western states, notoriously plagued by water shortages, (26) seem the most resistant to source metering laws, (27) even though they have the most to gain from efficient management of water resources. (28)

   This Article examines the implementation of Washington's source metering law to determine whether source metering does, in fact, aid in effective management of a state's water supply and, if so, whether western states should require the measurement of surface water. Part II provides background on water consumption and waste in Washington and throughout the western United States. Part III discusses the Washington legislature's 1993 decision to enact a source metering law as part of the state's water code, requiring the measurement of all surface water diversions, and explains the requirements of the statute. Part IV examines the relationship between Washington's source metering law and actions in Texas and Kansas, which impose some form of source metering, and in Oregon, where WaterWatch of Oregon has pushed for source metering. Part V looks at the effectiveness of source metering in managing' state water supplies and discusses how source metering may mitigate the effects of climate change. The Article concludes that Washington's source metering does aid in effective management of the state's water supply and provides a successful model which other western states should adopt.

2. WATER CONSUMPTION AND WASTE

   In the last fifty years, world water consumption has tripled. (29) Water use in the western United States continues to rise (30) as the demand for water to provide energy and support agricultural and metropolitan uses, recreation, fish and wildlife habitat, and water quality protection increases. (31) The climate of the West, with its arid, desert-like lands that receive less than twenty inches of rainfall per year, (32) exacerbates water shortage problems. However, even in the wet areas of western Washington and Oregon, where rainfall can exceed more than 100 inches per year, (33) water shortages have become a concern. (34)

   1. Agricultural Use

      An estimated 408 billion gallons of water were withdrawn in the United States for all uses in 2000. (35) Of this amount, more fresh water is used in agriculture than for any other use. (36) Irrigation uses the overwhelming majority of water consumed in western states. (37) For example, irrigation withdrawals consume 80% of all water used in Utah and 90% of all the water used in New Mexico. (38) Additionally, many crops grown in the West are low-value crops. (39) In California, pasture, alfalfa, cotton and rice--the four largest water-using crops--use over 50% of all agricultural water. However, the economic value of all these crops together is similar to that of the state's grape crop, which uses only one-ninth as much water. (40) History is one reason for such inefficiency: states granted very generous water rights to early farmers, especially those raising livestock, and the farmers continue to pass down these property rights in water through generations. (41) Existing water users have essentially fully appropriated all available water, meaning that new users can only obtain water when prior existing uses change. (42) Although agriculture traditionally employed more than half of the western population, (43) this number has been on the decline. By 1991, the natural resource industries together provided less than 6% of employment in the West. (44) As agriculture employs fewer people, and the demand for water remains high, (45) water use has shifted away from agricultural use and toward economically higher-valued industrial and municipal uses. (46) Farmers have begun to market their water rights, realizing they can make more money selling their water supply than by growing low-value, water-intensive crops like alfalfa and rice. (47)

   2. Urban Use

      Population in the West has exploded over the last few decades. (48) Spatial changes have been the most significant, with people moving away from rural areas and congregating in urban areas. (49) As western metropolitan areas grow, so does the demand for water. (50) In fact, the most recent report from the United States Geological Survey found that municipal withdrawals increased by 8% between 1995 and 2000 alone. (51) Homes account for more than half of the municipal withdrawals, representing much greater consumption than either business or industry. (52) Location also causes these amounts to increase. (53) For example, the arid West has very high per capita residential water use, due to landscape irrigation. (54)

      As more water moves toward urban use, the use becomes less elastic because a municipality must always provide water for the basic needs of its citizens. (55) On the other hand, a farmer can forgo applying water to his crops during a year of shortage. (56) Projections suggest that people will continue moving to the West for at least the next twenty-five years, meaning the demand on water will remain high and become less elastics

   3. Salmon

      In Washington and throughout the Pacific Northwest, salmon have played a critical role in history, culture, economy, and recreation. (58) Tribal people value salmon for subsistence and their cultural significance, fishermen value them for sport and economic importance, (59) and environmentalists value them for their ecological significance. (60) Habitat loss, however, poses a considerable threat to the existence of salmon. (61)

      Wild salmon declined drastically during the twentieth century; by 1999, salmon had disappeared from 40% of their historic spawning grounds in Washington, Oregon, California, and Idaho. (62) Water shortages often cause habitat loss because salmon need clean, cool water in order to survive. (63) Low streamflows can interfere...