Water Rights in the West
You've got the Right
Golf courses worldwide have been making a concerted effort to reduce the use of water for years. Many of these voluntary actions had both the environment and budget in mind. In the Western United States, however, where drought conditions have reached dangerous and historic levels, mandatory restrictions have become the norm.
In April of this year, California governor Jerry Brown issued Executive Order B-29-15 - ordering the State Water Resources Control Board to impose restrictions to achieve a 25 percent reduction in potable water use statewide, and to impose restrictions on commercial, industrial and institutional properties such as campuses, golf courses and cemeteries, to implement water efficiency measures to reduce potable water use in an amount consistent with the 25 percent statewide reduction.
According to Kathryn D. Horning of Allen Matkins law firm, the governor left it up to the State Water Board to determine the precise nature of the regulations. The Board adopted drought emergency regulations that went into effect May 18 and remain in effect for 270 days, unless renewed. The emergency regulations target three different groups, urban water suppliers (water suppliers who serve more than 3,000 customers or supply more than 3,000 acre-feet of water annually), smaller water suppliers, and end users, which is where golf courses come into play.
“For end users, the State Water Board imposed a variety of use restrictions, such as prohibiting irrigation runoff and washing down driveways and sidewalks,” Horning explained. “Included among these is a restriction on commercial, industrial and institutional properties that use a water supply, any portion of which is not from an urban water supplier or a smaller distributor. An example here would be a golf course with its own well. Such properties must either limit outdoor irrigation with potable water to no more than two days per week, or reduce the amount of potable water usage that is not obtained from a water supplier by 25 percent.”
The two-day watering law for golf courses in California is far from black and white. “The emergency regulations only pertain to potable water use,” Horning said. “Many golf courses use recycled or reclaimed water that is not considered potable. The emergency regulations would not apply to these properties. “Additionally, if a golf course is supplied by an urban water supplier, it is up to the supplier to determine its own restrictions,” she added. “Many, but not all, suppliers have imposed two-day-per-week limitations. Others are imposing individual percent cutback requirements, or providing an allowance with much higher fees for increased use. And if water is supplied by a smaller supplier or the water is self-supplied, the supplier has the option of cutting back to two days per week or a 25 percent reduction.”
Washington State University has been dealing with water rights at its Pullman campus, also location of the university owned Palouse Ridge Golf Course which has one integrated water system serving the entire grounds, according to attorney Sarah E. Mack from the Seattle-based law firm of Tupper Mack Wells. The system is supplied by multiple groundwater wells and water rights, some dating back to 1930s, in the Palouse Basin, where declining water levels in the aquifer have been observed for some time. WSU voluntarily reduced its groundwater pumping and implemented a rigorous conservation program about 25 years ago. And, during the 2000s, the school began planning for expansion and modernization of its old nine-hole golf course, now Palouse Ridge.
“At around the same time, the Washington legislature amended the water code to allow municipal water suppliers greater flexibility in how they use their water rights,” Mack said. “That legislation was controversial; some environmentalists and Native American tribes objected to what they believe is an unwarranted expansion of ‘municipal’ water purveyors. WSU took advantage of the new law to obtain authorization from State Department of Ecology to consolidate its pumping in two modern wells (each of which has the capacity to supply the entire campus in case the other well has to be shut down), and to have all its water rights reflect that they are for ‘municipal’ water supply purposes.
“Although this water right change was unrelated to the Palouse Ridge Golf Course project, people opposed to using land for the golf course expansion joined forces with people opposed to the new municipal water law, and the university was embroiled in litigation over its water rights from 2006 to 2015,” she added. “This spring, the Washington Supreme Court finally ruled in favor of Washington State University.”
Can a course be guaranteed access to water? It depends on the water source and who supplies the water, according to Mack. “In most western states, if you hold a ‘senior’ (older) water right you are entitled to use water ahead of people who obtained their water rights after you did,” she said. “But that does not guarantee that water will be available; it just guarantees your place in line.
“If you rely on groundwater and your well runs dry, you have to deepen your well. If you rely on surface water and the stream runs dry, you may be out of luck,” Mack added. “If you receive water under contract from a municipal system, irrigation district or reclamation district, usually those contracts will guarantee water deliveries only if adequate supply is available.” Robert Good, senior vice president hydrogeologist at Leggette, Brashears & Graham, of Farmington, Conn., said access to water is regulated differently across the country, but for the most part access or usage is permissible up to certain threshold volumes.
|“Water withdrawal above state-specific threshold volumes may require the user to register withdrawal with state agency.” Good said. “In some states, users must also obtain a permit from the state agency for withdrawal over the threshold volume, which considers such items as impacts to existing permitted uses, impacts to local surface water and groundwater resources, water conservation and project justification. So in most instances you could say that access is guaranteed, i.e., a property owner has the right to develop reasonable water resources on their property.|
“Higher amounts of withdrawal may also be guaranteed with a registration or permit, provided you can demonstrate there are no associated negative impacts,” he added. “If your withdrawal interferes with other users or resources you may be denied access.” Horning said California water rights are generally considered cognizable property rights, and also are based on a priority system, with senior rights holders taking priority over junior rights holders.
“Those whose rights are more junior will be cut back before those with senior rights,” she said. “However, all water use is limited by Article X, section 2 of the California Constitution to ‘reasonable and beneficial use.’ In the past, water use by holders of the most senior rights were never really questioned, but the State Water Board has become much more active in investigating all water use, and declaring certain uses not to be reasonable or beneficial regardless of seniority.
“Also, what may be reasonable and beneficial at one point in time, may not be reasonable and beneficial at other times, such as in drought conditions when supplies are limited,” Horning added. “The concept of reasonable and beneficial use in a time of drought is one of the main bases for the emergency regulations, and affects both those who directly hold water rights, and those who receive water from a supplier based on a contract or agreement. The concept of who has rights to water and who may be limited has become very controversial.”
A course with a contract guaranteeing access to water may not be in any better position than one with nothing in writing. Regardless of any contract in place, Mack said the “guarantee” is only as good as the amount of water the supplier can deliver. “Drought is a classic example of a condition that’s beyond the control of the water supplier which would probably excuse it from any contractual obligation to deliver water,” she said.
Mack added that over the last few years large water suppliers, dependent on federal permits or federal water projects, in several western states have had their supplies curtailed in order to protect endangered species. Also, drought conditions can lead to water curtailment - a town, irrigation district, or property owner with “junior” water rights would be forced to curtail use in order to protect “senior” water rights.
For Kurt Vogel, general manager of Yolo Fliers Club in Woodland, Calif., working out of three wells has been sufficient, but the club will likely cut their gallons of water used in half compared to 2013 numbers. A member-owned private golf club that was established in 1919, the Yolo Fliers Club used approximately 40 million gallons of water in 2013, but is looking at more like 20 million gallons this year. “Right now we are all attempting to satisfy the governor’s 30 percent cutback request,” Vogel said. “We only irrigate the golf course during the months of March through September.” The Yolo Fliers Club maintenance staff has gotten creative in an effort to lower water usage.
“We have removed certain out-of-play areas from the grassy areas that are normally irrigated and maintained,” Vogel said. “Our course covers 110 acres. We have probably eliminated 10-20 acres of irrigated turf at this time and will only attempt to keep them alive. These areas may become pretty unsightly but are really not in the playable areas of the course.” Considering the myriad course designs and the vastly different regions in which they’re located, there really is no way of even “ball-parking” an estimate on typical water usage.
“Transpiration rates vary tremendously across the country, as does the acreage of irrigated greens, fairways and rough, soil conditions, and the types of grasses and their water needs. Other use factors include superintendent application rates and members expectations. In the northeast, a typical 18-hole golf course that includes approximately 60 acres of irrigated turf has a maximum daily water demand of approximately 300,000 to 350,000 gallons per day,” Good said, noting this is significantly above most permit threshold values. “Remember that irrigation water usage in most of the country is seasonal, occurring during the growing season. In the northeast this typically lasts from mid-April to mid-October; approximately 180 days.
So the average daily water demand is significantly less, on the order of 100,000 gpd. But note again, regulations typically consider maximum capacities and daily demands, although I am aware of a few states that consider average daily or total monthly usage.” Whether water for irrigation is plentiful or not, the industry as a whole continues searching for better ways to keep turf grass alive and healthy. While the desire is there, much work lies ahead.
“Many courses are looking for ways to water with recycled or reclaimed water rather than potable water, but the main issue is whether infrastructure is available to bring recycled water to the course,” Horning said. “Some are exploring whether groundwater is available, especially if the groundwater is not drinkable and could be used for irrigation. Some courses are replacing turf with drought-resistant or native plants, installing smart watering systems, lining lakes and letting certain areas go brown.”
Mack suggests putting in thought and planning now to successfully navigate uncertain future. “Be proactive about anticipating and adapting to possible water scarcity,” she said. “From turf to technology, there’s so much innovation in the golf course industry; embrace it. If you continually improve your water use efficiency, you will improve your ability to adjust to climate change.”
Source: Rob Thomas GCI contributor / 6 July 2015