Yakima River Basin -- The future's uncertain path

CLE ELUM, Wash. -- John and Annette Becht searched the central Cascades for the perfect place to build their future retirement home.

The Kent software consultant and his wife, a paralegal, stopped looking when they found Tillman Creek.

With South Cle Elum Ridge on one side and breathtaking views of 9,400-foot Mount Stuart and the Stuart range on the other, the couple knew this was the place for them.

"I hiked on the north side of the Stuart range many times," said John Becht, 46. "When I had a chance to buy property to see it forever, that's a pretty easy decision."

The Bechts bought two adjoining lots in one of several Tillman Creek housing developments, most commonly referred to as the Community at Tillman Creek, a proposed gated community.

But fast-forward seven years and the couple's plans are best described as stalled, their dream deferred. The vast majority of the lots at Tillman Creek are vacant because of a state-imposed moratorium on new wells in Upper Kittitas County.

No new wells can be drilled unless the impact of that consumption can be offset -- or mitigated -- with older water protected by a senior water right.

In microcosm, this development and creek represent both the challenges and opportunities facing water policymakers as they plan for the future while recognizing the past. With the Yakima River Basin fully appropriated -- that is, all the water is spoken for -- and the Yakama Nation's fishing rights protected by treaty, the problem has no easy answer.

Kittitas County Commissioner Paul Jewell, who has taken the lead on water issues for the three-member commission, calls Tillman Creek the poster child for the challenges his county faces.

"We have a lot of things in play here. We have a basin that is fully appropriated," he said. "On top of that, the court has awarded the Yakima Nation rights in the tributaries for fish. You can't withdraw water from a specific tributary that would harm its ability to sustain fish."

Creative ideas

While the issue is complex, Tillman Creek could serve as a template for solutions to the water problem in other parts of the Yakima River Basin, where the guiding principle is to avoid impacts on irrigators and fish.

Water banks selling senior water for new uses, outright sales of water rights, improving fish habitat and making irrigation more efficient could all free up water for new users, such as the Bechts.

Other more exotic possibilities exist. For example, experts are even looking at using irrigation water that has percolated into the ground over the years as a possible source for new water rights. The federal Bureau of Reclamation, which operates the water delivery system, would have to agree that the water is available for new uses like homes.

A long-discussed idea would have farmers agree to fallow land for a season, freeing up water to be moved outside the district for new wells. Rotational fallowing by a number of farmers would be necessary to make the concept work.

Other ideas are moving forward, particularly in Kittitas County, where county commissioners will allow residents to purchase water from a public water system and store the water in a cistern on site for domestic use.

What is not in the works, at least not yet in Yakima and Benton counties, is a ban on new wells similar to the moratorium in Upper Kittitas County that snared the Bechts' building plans.

Officials say they would rather work cooperatively with all interest groups -- farmers, the Yakama Nation, the Bureau of Reclamation and local governments -- to devise a set of measures to support growth while preserving senior water rights.

Some say a unilateral ban in Yakima and Benton counties would create a political firestorm for the state Department of Ecology.

With the moratorium in place in Upper Kittitas County, the Bechts are indeed stalled. They had a well drilled but are forbidden from using it.

It has been a steep learning curve for a lot of owners in the often arcane world of water and water rights. It's a shortcoming Becht believes he and his potential neighbors need to fix.

"We are all trying to figure it out," he said. "There's no 'Beginning Water for Dummies' book you can buy at the store."

Moving water around

Suncadia, the nearby sprawling mountain resort, is offering to sell old water rights Ecology required it to buy because of the likelihood the resort would prompt development around its 6,400-acre boundary. That development did indeed happen.

The Bechts want to buy old rights because it's important to them to have protection against a shut-off in the event of a drought.

But their immediate problem is Tillman Creek, which is one of those places where mitigation water doesn't help. Here's why: The Suncadia water bank is designed to offset flow losses in the main stem of the Yakima River. Tillman Creek is some distance away from the river and can't benefit from Suncadia mitigation water.

As a result, some other mechanism will be needed to make up for water used by the Tillman Creek lot owners.

Another wrinkle: Resource managers -- the Yakama Nation, state and federal fishery agencies -- are reluctant to sign off on new wells supported by mitigation water, a concept called water budget neutrality, unless they can be assured that fish won't be harmed.

And in the network of small creeks that course through the upper county, that's a difficult task.

Joe Mentor, a Seattle attorney working for Suncadia who has been involved in basin water issues since the 1980s when he worked for former U.S. Sen. Dan Evans, is pursuing a plan that would partially solve Tillman's problems. His plan would create a pond to store excess spring water for later return to the creek.

The plan would cost about $100,000. The total price tag could top $12,000 per lot for Tillman lot owners. The figure includes the purchase of mitigation water to offset their impact on the main stem.

Creeks support fish

In the grand scheme of things, the amount of water needed to support rural residential and municipal growth well into the future is small, but nevertheless creates a demand without a corresponding water supply.

A stakeholder group representing irrigated agriculture, the Yakamas and other fish managers, local and state governments and environmentalists estimates about 50,000 acre-feet of water will fill that need for the next 50 years. The Yakima River system annually produces 60 times that much.

"There's enough water," said Tom Tebb, Ecology's regional director in Yakima. "There's just not enough at the right time in the right place at the right price."

But creeks like Tillman and the neighboring Big and Little creeks illustrate the problem. They are significant rearing areas for juvenile fish and often are important for the species most in trouble -- summer steelhead and bull trout, said Jeff Tayer, regional director for the Washington Department of Fish and Wildlife in Yakima.

Steelhead and bull trout are listed as threatened under the Endangered Species Act.

While critics of the moratorium -- and they are legion in Kittitas County and elsewhere -- say domestic wells are but a blip on the screen of overall water use, resource managers like Tayer say the add-on effect of hundreds of new wells takes a toll.

"It's the cumulative effect that gets you from a habitat perspective. No single activity is significant enough to matter at a population scale," Tayer said. "When you add them up, they start to get significant. That's the history of habitat loss."

Explosive growth

The Tillman Creek development is emblematic of the explosive growth in Kittitas County in the early and middle 2000s. In that time, county government approved thousands of new residential lots in forested areas without water rights.

The developments relied on the state's exempt well statute, which allows small uses such as domestic wells and industrial uses drawing fewer than 5,000 gallons per day, irrigating a small lawn and garden and watering livestock, without first obtaining a state permit.

While exempt from permit requirements, these wells aren't immune to shut-offs when they adversely affect senior water rights.

Kittitas was the fourth fastest-growing county in the state by 2007, a land rush fueled by westside money thanks to a then-strong economy. Everyone, it seemed, wanted a piece of the county's magnificent scenery at a bargain price.

A welcoming county government -- critics say the county never met a development it didn't like -- approved thousands of acres of rezones and numerous housing development projects in rural areas.

In two years -- 2006 and 2007 -- Kittitas County issued more building permits than Yakima County, which has a population more than six times its neighbor to the north. Some of those permits are for homes in the huge Suncadia resort near Cle Elum.

Today, there are an estimated 6,800 available, undeveloped lots -- enough to meet growth needs for decades. And the vast majority were planned to rely on exempt wells to supply home use.

Some of those lots are known as daisy chains with common ownership and a common road network but submitted as separate applications to circumvent a 2002 state Supreme Court decision placing a 5,000-gallon limit for all homes in a development.

A private citizens group, Aqua Permanente, first raised red flags about the growth and reliance on groundwater.

Melissa Bates of Cle Elum, a founder of the group, said the level of potential growth was unsustainable given the uncertainty over water availability, not to mention the county's ability to provide police and other public services to all the new homes. What's more, she felt all the growth was changing the county's rural character.

"The whole point of the county plan had taken a backseat to development," said Bates. "This had turned into a big land rush."

David Taylor, now a state representative from Moxee, was the county's planning director from 1997 to 2004. He has a different perspective.

He said the county followed state law in processing subdivision applications. To have done anything different, he argued, would have invited lawsuits from developers.

Plus, senior users who believe they are hurt by new wells already have legal recourse in the courts, said Taylor, who represents much of the Lower Valley as a 15th District lawmaker.

In short, Taylor said Ecology jumped the gun and has no evidence to support its action, which wasn't necessary. "The fact is Ecology is assuming there will be an impact and a legal mechanism already exists to deal with impairment issues."

Aqua Permanente first sought from Ecology a ban on all new wells in 2007 in order to develop information to make sure senior water rights and streamflows were protected.

The petition was denied. Instead, Ecology began talks with the county to devise a plan to manage new groundwater uses in the upper county.

As talks dragged on, Ecology got tougher and banned all wells in the upper county in July 2009.

The growth also caught the attention of local and statewide conservation groups that challenged the county's comprehensive plan and development regulations before the state Growth Management Hearings Board.

The board agreed with the challengers, concluding the county violated the 1990 state Growth Management Act by allowing lots as small as three acres in rural areas.

The county appealed, and the case awaits a decision from the state Supreme Court, which is considering the density issue as well as whether state environmental laws require counties to determine if a legal right to water exists.

A decision is expected late this year.

The moratorium, with a big dose of help from the nationwide housing crisis, put the brakes on development in Kittitas County.

Lot and home sales declined. According to the Kittitas County Association of Realtors, average prices for lots dropped almost in half between 2006 and 2010.

Marc Rich, managing broker for Windermere Realty in Cle Elum and association president, said Realtors and builders have been devastated by the twin whammies. And he blames Ecology for an "unscientific" moratorium.

"I have contractor friends who used to be thriving and are now losing their homes. That story is playing out over and over," he said. "We have lost businesses. The economic impact is so enormous."

Ecology is criticized for not having a water-banking system up and running to help lot owners and developers when the moratorium was imposed. It was seven months before the Suncadia bank began processing applications for water. Even now, with banks open, the process can take months because of requirements for public notice and comment.

Suncadia's Mentor said the slow, bureaucratic process is delaying economic recovery in the upper county.

"Ecology has no sense of the scale of the problem," Mentor said.

Several state senators, including Jim Honeyford, R-Sunnyside, want Ecology to develop a general permit that could consider a group of mitigation requests at once to speed approvals.

Glass half-full

Against that backdrop, Jewell is trying to find a solution, creating a committee of Realtors, builders, farmers, the Yakama Nation and fish agencies to find a way to balance competing demands on water.

He has raised the novel idea of getting county government into the water business by purchasing a senior water right and opening a publicly owned water bank. It could face a legal hurdle, however, because the state constitution prohibits the use of public funds to benefit private entities.

A more likely scenario would allow prospective homeowners to pay into a fund for improvements to habitat for fish. One example might be removing impassible barriers and improving the functioning of flood plains so the impact of new well pumping wouldn't harm fish.

The idea has merit, said Dale Bambrick, Eastern Washington branch chief for federal NOAA Fisheries, the agency responsible for protecting steelhead, and a member of the committee.

"We can work this out at least as it regards relatively low rates of residential development and solve the immediate bottleneck problem," Bambrick said. "If we are talking about thousands of new residences, it gets more difficult."

One other possible solution is using the network of irrigation canals to deliver state-owned trust water or Bureau of Reclamation water to the creeks, water that would eventually make its way to the Yakima River and downstream to supply existing rights.

For example, the Kittitas Reclamation District's canal system crosses Tillman Creek. Water could be sent down the canal to Tillman, where it could sustain creek flows and allow the lot owners to use their wells.

The same concept could work in other creeks as well.

To make that idea work, the canal would have to be upgraded to be more efficient and able to handle the extra water. The 59,000-acre district's water users would also have to go along with the idea.

"We can't do anything that is going to further reduce the amount of water our users are receiving," said Urban Eberhart, a district director and member of Jewell's committee.

The KRD is a junior district, which means its rights are reduced so the older, more senior rights can be satisfied.

He said directors would consider a proposal with adequate safeguards but nothing has been presented yet.

Back at Tillman Creek, Becht is optimistic he and his wife can build that retirement home in the years ahead.

"I'm a glass-half-full type of guy," he said. "There is a lot of water here. This is a bump in the road. I think we will figure it out."

* David Lester can be reached at 509-577-7674 or dlester@yakimaherald.com.