Water Rights 101

Jon CulpWashington State Conservation Commission

Summary

Why should land owner care?

Introduction to Basic Water Law

Issuing New Water Rights

Water Rights Transfers/Changes

Trust Water Program

Columbia River Program

Why Should Land Owner Care

Land owner is a water right holder.

Land owner buys land with appurtenant water rights.

Ecology funding programs (e.g. water acquisition, IEGP) improve stream conditions.

What is a Water Right?

A water right is a legal authorization to use

a reasonable amount of public water

for specific beneficial purposes.

A water right is a use-based vested, property right

Introduction to Basic Water Law

Why Are Water Rights Required?

Water rights are required by law to ensure proper allocation and management of Washington’s water resources. Our state’s waters are a public resource and their use should return the maximum benefit to the public.

Water rights establish priority dates which can be used to protect senior water right holders, and instream flows.

Pre-State (1889) / Territorial (1853)

Water is a natural resource held in common for the public good.

Water is not “owned.”

Individuals can have the right to use it.

History

Riparian (bankside) rights emerged by virtue of property ownership bordering a lake, stream or water body (English common law).

Each riparian has an equal right to water.

Reasonable use must be made of the water.

Riparians are entitled to protection against appropriations occurring after their priority date [date of claim] regardless of who first used the water.

1891 (Prior Appropriation Doctrine)

“The right to the use of water in any [water body] may be acquired by appropriation, and as between appropriations, the first in time is the first in right.”

Water users were required to post a “notice” of intent to use water on a tree near the diversion and record the notice at the county courthouse. 1891 Laws of Washington

During early Settlement, there was Chaos

“At present the appropriators on our streams, in many instances, have filed on all and more water than the stream would supply; and under the constitution and statutes claim the right to beneficially use it all. In opposition to this the bank owners claim the right to have all said waters flow past their lands; and have a right to restrain the diversion of said waters to any lands beyond those owned by the bank proprietors.”

Report of the Washington Water Code Commission, (1914)

During early Settlement, there was Chaos

“The appropriator’s rights to use the water of this state are open to attack . . . . [T]here is no law limiting the amount of water that may be filed on from any stream. On some streams the appropriations now on file call for many times the amount of water in the stream and available for use, and yet, there is no law prohibiting further appropriations, and no officer whose duty it is to eliminate excess appropriations and protect water users against future encroachments upon

their rights.” Report of the Washington Water Code Commission, (1914)

1917

“All waters within the state belong to the public, subject to existing rights.” Subsequently, water law was based on the Prior Appropriation Doctrine: “First in time, first in right.”

Permit system for using surface water.

Procedures for adjudicating all “vested” water rights prior to the act. The Legislature mandated that the state administer the water resources. RCW 90.03

What is a Permit?

A permit to appropriate water is an inchoate (undeveloped or unperfected) right, which is “an incomplete appropriative right in good standing” which “remains in good standing so long as the requirements of law are being fulfilled.”

Reasonable progress & due diligence.

Construction

Perfection

What is a Certificate?

A certificate to appropriate water is awarded when the water right holder beneficially uses the amount of water permitted, at the location identified, and for the intended purpose.

1945

Ground Water Code

Extended the 1917 surface water code to ground water.

Created a permit system for all uses of ground water

Declaration period for vested uses

Exempted withdrawals for domestic & industrial purposes (5000 gpd), irrigation of ½ acre of lawn & stockwatering, . RCW 90.44

1967

Water Right Claim Registration Act

Established a water rights claim registry

Covered water use not previously required to be documented (RCW 90.14)

Between 1969 and 1974, approximately 170,000 claims were filed. Claims also filed in 1985 and 1997-1998.

What is a Water Right Claim?

A “claim” asserts that water was used prior to establishment of the water code.

If I file a Claim, do I have a Water Right?

Not Necessarily. Some people have mistaken claims to be water rights.

A water right is an authorization to use water, and a water right claim is only a statement that you believe you have a vested right.

How do I know if my Claim is “Vested”?

The final determination that a claim represents a vested right can only be made through an adjudication, a legal process conducted through a superior court which determines the priority and extent of existing water rights in a given area.

Ecology and Conservancy Boards can “tentatively” determine the extent and validity of claims through a change application.

By the numbers . . . Water Rights in the State

<1% Change Applications

1,200

2% New Applications,

5,700

1% Permits3,200

22% Certificates 50,000

73% Claims 166,500

Water Rights Portfolio (approximate)

1970 to PresentStatutes passed in the last 40 years added complication to the water code.

Water Resources Act (1971) RCW 90.54 Family Farm Act (1977) RCW 90.66

Water Storage (1987) RCW 90.03

Trust Water Rights (1989) RCW 90.42

Water Re-use (1992) RCW 90.46

Watershed Planning (1997) RCW 90.82 Conservancy Boards (2001) RCW 90.80 Municipal Suppliers (2003) RCW 90.03.370

What Criteria Are Used When Making

New Water Right Decisions?

Water right permits are issued only if the following statutory requirements are met:

The water use will be beneficial;

There will be no impairment of existing water rights

There is water available for appropriation

The issuance of the requested water right will not be detrimental to the public’s

interest.

Are there Other Considerations?

Yes…

Existing watershed plans.

Stream closures, instream flows.

SEPA.

Reasonable use.

Hydraulic continuity.

Consumptive use.

Seawater intrusion.

Site-specific considerations.

What Criteria Are UsedWhen Changing Water Rights?

Two-Step Process

Step 1: Is there a water right to transfer (tentative determination of extent and validity, or HOW BIG IS IT)?

Step 2: Is the proposed transfer allowable?

Is There A Water Right To Transfer?

Is there a certificate, permit or claim?

How big was it originally?

Has it been abandoned?

Has it been relinquished?

Beneficial Use

Beneficial use is the basis, the measure, and the limit of a water right (Ickes v. Fox, 1937)

A beneficial use is perfected through the actual use of water (Twisp, 1997).

No right exists beyond the extent that a beneficial use has actually and legally been made (Theodoratus, 1998; Grimes, 1993).

Abandonment

Long-standing non-use

Intent to abandon.

Intent can be physical, planned or both.

Relinquishment

Chapter 90.14 RCW

If all or a portion of the right is not used at least once every 5 years, it relinquishes to the state.

Relinquishment occurs by operation of law.

19 “good” reasons that it is o.k. to not use your water for longer than 5 years . . .

Relinquishment (RCW 90.14.140)

Drought

Active military service during military crisis

Non-voluntary service in the U.S. armed services

Operation of a legal proceeding

Federal or agency leases of land or water rights

Federal laws imposing land or water use restrictions through a program for acreage limitations or production quotas

“Wet” water years

Power buy-back

Yakima River basin water enhancement project conservation

Reliance on transitory return flow

continued . . .

Relinquishment (RCW 90.14.140)

Crop rotationPower developmentStandby/reserve supply to be used during droughtDetermined future developmentMunicipal Water SupplyIf such waters are not subject to appropriation under RCW 90.40.030 (federal reserves)Beneficial uses under leases approved by EcologyRights satisfied by agricultural industrial process waterTrust water rightsRights in the change process

Water Right Transfers: How?

File an application for change

Notify the public

SEPA

Investigate the change

Approve or deny the change

How Does Ecology Investigate a Water Right?

• Site Investigation

• Ownership

• Meter / Power Data

• Aerial Photography (http://www.esg.montana.edu/gl/trs-data.html)

• Crop Records, Washington Irrigation Guide

Step 2: Can the Water Right Be Changed?

Impairment

Public Interest

Enlargement

Season of Use Considerations

Same Body of Groundwater

Surface to Ground Transfers

Consumptive Use Issues

Family Farm Act Restrictions

Municipal Issues

Questions / Comments?

More information!

jculp@scc.wa.gov, or

jmyrick@scc.wa.gov

509.385.7509

509.301.2498