Academic journal article Environmental Law

Water for Growing Communities: Refining Tradition in the Pacific Northwest

Academic journal article Environmental Law

Water for Growing Communities: Refining Tradition in the Pacific Northwest

Article excerpt

I. 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.

II. OVERVIEW: MUNICIPAL WATER SUPPLY IN THE NORTHWEST

A. 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. …

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