Water for growing communities: refining tradition in the Pacific Northwest.

• Author: Carpenter, Janis E.
• Position: Symposium on Northwest Water Law

1. INTRODUCTION

   Farms and fish currently dominate the dialogue on water rights and instream flows in the Northwest.(1) Farms, after all, draw the most water from rivers and streams in the region, sometimes leaving entire species of fish extinct, endangered, or threatened.(2) However, the "new Westerner" is more likely to live in a city or town than on a farm. Some of the fastest-growing urban areas in the United States are in the Western states,(3) with some of the highest growth rates in the drier parts of those states.(4) Population growth and economic transformation in the Northwest suggest that some of the greatest new obstacles to instream flows in the future could come from cities and towns.(5)

   More than forty years ago Frank J. Trelease sensed the power of municipalities to affect existing water use patterns and called for a reappraisal of the special privileges granted by states to municipal water suppliers.(6) In the Northwest, the favored treatment has been called the "growing communities doctrine."(7) The doctrine embraces case law and statutes that allow a municipal water supplier to hold a priority date for an unused block of water rights in anticipation of future needs. Holders of junior water rights may use the water, instream and out-of-stream, but only until trumped by the senior municipality when it needs the water.

   This Article describes the Northwestern context for contemporary applications of the growing communities doctrine. It reflects discussions with a wide array of municipal water supply professionals in the public, private, and nonprofit sectors.(8) It provides an overview of the hurdles encountered by modern municipal water suppliers, and some of the innovative conservation and planning strategies they are using to meet those challenges. It also explains the practical basis for the growing communities doctrine and documents the reappraisal of the doctrine now underway as this region's population grows, economies change, fish decline, and competition for water intensifies. The Article also identifies some key questions related to the doctrine as raised in the Yakima River Basin and Snake River Basin adjudications, the Idaho legislature, Washington courts, state water agencies, and in commentary. It focuses in particular on questions about instream and other uses of dormant municipal water rights and on the types of entities that qualify for the special treatment granted to growing communities.(9)

   Part II of the Article provides an overview of the municipal water supply situation in the Northwest. It describes challenges facing municipal water suppliers, outlines improvements in water conservation and water supply planning, and summarizes pertinent laws that govern municipal water rights. Part III focuses on potential uses of dormant municipal water rights and the varying designations of entities eligible for municipal water rights. Drawing on this composite, the Article concludes with a proposal for a comprehensive legislative review of municipal water demands to determine how they can best be meshed with other water uses, instream and out-of-stream, as the Northwest grows and changes in the 21st century.

2. OVERVIEW: MUNICIPAL WATER SUPPLY IN THE NORTHWEST

   1. Challenges

      As Pacific Northwest communities grow,(10) many municipal water providers seek water in areas where supplies run short and demands increasingly compete.(11) In this search, they may encounter a number of barriers.(12) For example, in some areas water rights may no longer be available due to overriding environmental concerns or because the normal water supply is already fully used.(13) In this situation, available water rights offer little security in a water-short period because they stand junior to significant prior rights, or because their validity and scope remain unadjudicated or otherwise uncertain.(14) The costs and risks of acquiring or condemning old water rights or developing new storage facilities, transmission systems, and treatment plants may be overwhelming.(15) Moreover, municipal water suppliers face increasing scrutiny by states attempting to cope with competing demands from groups advocating instream flows and from water users pursuing private interests.(16)

      Boise attorneys Jeffrey C. Fereday and Christopher H. Meyer have noted that Idaho communities are experiencing unprecedented population growth and economic development at the same time that planning, acquisition of water rights, and construction of new water supply systems are becoming more difficult and time consuming.(17) In Oregon, Portland area water suppliers have compared their situation to conditions in the electric utility industry as they grapple with increasing costs, environmental concerns, a need for new sources of supply, pressure to integrate conservation as a resource, and a future of mounting uncertainties.(18)

   2. Responses

      1. Conservation

         Responding to these challenges, Northwest water suppliers are creating new ways to stretch the water they have to meet growing needs. Laws and municipal water-supplier practices, particularly in Washington State, recognize water conservation as a resource that may reduce, delay, or eliminate the need to develop new water supplies.(19) For example, the town of Leavenworth, located in north-central Washington, postponed the need for new water rights(20) and reduced the flow at its wastewater treatment plant(21) by implementing a water reduction program. The program featured installation of water meters, irrigation efficiency upgrades by the local school district, and installation of water recycling and reuse systems at a local fruit warehouse and the city sewer plant.(22) Between 1985 and 1990, when the town's population grew by four percent, its annual water use dropped by more than fifty percent.(23) In a protest of new groundwater rights applications made by the City of Bend, Oregon, WaterWatch of Oregon urged similar measures, as well as exhaustion of conservation measures as the first source of water to meet new needs.(24)

         A recent survey of municipal water suppliers in the Northwest showed that eighty-five percent(25) of the municipalities use meters to monitor the water use of their residential and nonresidential customers,(26) thereby providing a crucial foundation for conservation programs.(27) The same survey documented a large number of water conservation efforts including public information programs,(28) system leak detection programs,(29) and testing of various forms of conservation-oriented rate structures.(30)

         Northwestern municipal water suppliers are also promoting industrial water conservation. For example, the Portland Water Bureau has worked with several large industrial customers to dramatically reduce industrial water demand.(31) In other situations, the increasing cost of water alone spurred Portland companies to unilaterally make their own efficiency improvements.(32) In Washington County, treated wastewater from the Rock Creek plant is used for irrigation purposes on school fields, golf courses, a dairy, and landscaping at a light industrial firm.(33) Washington State has approved nine pilot projects under the terms of its Reclaimed Water Act.(34) One such project, developed by the City of Pullman, calls for application of reclaimed water to a golf course, city park, and school playfields.(35) In addition, Northwest policy makers increasingly recognize the need to require high levels of water use efficiency as a condition in tax incentive packages offered to new industries, especially water-intensive high technology electronics firms.(36)

      2. Planning

         Water suppliers also are participating in multi-jurisdictional planning endeavors that incorporate innovative planning concepts. Most notable is the process undertaken by the twenty-seven entities that have cooperated since 1989 on a groundbreaking Integrated Resource Planning (IRP) effort to address water needs in the Portland area through the year 2050.(37) In fact, that process has attracted national attention as the most comprehensive application to date of the IRP techniques that were first developed in the electric utility industry.(38)

         The regional IRP process began with the development of policy objectives reflecting regional values for use in evaluating choices, conflicts, and trade-offs.(39) The policy objectives include water use efficiency and reliability, water quality, minimization of economic and environmental costs, consistency with regional growth strategies, and flexibility, as well as other objectives.(40) The process has also entailed an extensive public information and involvement program, development of demand forecasts, evaluation of sources of supply (including conservation), and an analysis of transmission needs.(41)

         The planners use a modeling tool to integrate the policy objectives and other planning factors into alternative strategies, which are presented as choices for regional decision makers.(42) Each alternative strategy explicitly acknowledges the uncertainties inherent in estimating future water needs and supply conditions by assuming the need for periodic assessments and adjustments.(43) In contrast to traditional linear planning, with a sequence of water supply and transmission projects scheduled over the planning period, the dynamic IRP approach anticipates a wide range of future conditions that may require changes of course.(44) The planners describe the IRP approach as a "multi-branched tree," in contrast to a straightforward path.(45)

         The Portland area planning process also represents an explicit attempt to coordinate water supply planning with land use planning, regulations, and other forms of growth management. The water suppliers, for example, have based their planning on growth management projections and strategies identified by Metro, the regional government in the area.(46) They say they do not wish to restrict approved growth or encourage inappropriate growth.(47) In...