Washington: Water Conservation

The prospect of losing water rights is a disincentive to water conservation.

The fundamentals appear stacked against irrigation conservation interests in this fight.  Western water law can be a cold hearted beast when unleashed by a state government. "Use it or lose it" and "beneficial use" are critically important.  Fail to use water for 5 years in Washington and you lose the right to use it.  Wasteful use of water is not beneficial use, and you lose the right to use water you did not put to good purpose. With UIOLI and BU, Ecology has a strong basis in historical precedent for viewing conserved water as returning to the State. There is a loaded question here: By going after net conserved water, is the State closing distance on a campaign to go after potentially conserved water?  Would the State declare that irrigators slow to implement conservation are irresponsibly choosing to waste water such that they should lose water rights?

Going after rights on wasted water would seem to work against decades of accommodation by state courts to treat wasted water (aka return flows) as necessary to achieve in-field application uniformity and to operate the huge diversion and conveyance systems delivering water to those fields.  However new technology is eroding the necessity of those inefficiencies.  At some point efficiency frees up water for other uses.  At stake is that the irrigation water rights holders are demanding the first option on what beneficial use their water should be used for whereas opponents are claiming that any new use would revert to the state as a change in use. To the extent that water rights are tied to the land, this opposing argument has considerable weight. Move the water to a different parcel and it is a change in use.

Irrigation rights holders are not defenseless here but they need to move while the opportunity presents itself. The roots of this conflict reach deep into state law. Irrigation rights holders have possession and they are in a position to parlay that possession into a powerful argument for changing the fundamentals of water law. If they do nothing they will lose. Arrayed against accommodation is a powerful coalition of environmental, commercial, industrial, municipal, and tribal interests in line to stake a claim for any "new" water. The degree to which Ecology is sympathetic to those interests is unknown, but the State must know that getting as much of this worked out without going to court is in everybody's best interests.

With so many interests, only great skill on the part of the State will forestall a lawsuit being filed by one of them. Farmers will continue to find ways to be more efficient and will conserve water for many good and noble reasons, but I would think their legal advisors are telling them they do so at their great peril in this setting.