A History of Water Law

Editor’s Note: This is the second in a five-part series about laws relating to water rights and usage in Washington state.

Part Two

Those of you who watch the editorial page of The Seattle Times got a glimpse of the debate surrounding the latest twist in Washington water law.

At issue was a recent State Supreme Court decision clarifying the groundwater exemption to the water code. Under the exemption, small groundwater withdrawals (defined as less than 5,000 gallons per day) are exempt from permitting requirements.

The court’s decision affirmed a 1997 Attorney General Opinion on permitting requirements. According to that opinion, multiple wells serving developments that withdraw more than 5,000 gallons per day require a water right permit, even if each well withdraws less than 5,000 gallons per day.

For more information on this case you could start with the April 2, 2002 Seattle Times editorial and the responses that appeared on the April 19 editorial page. Rather than examine the specifics of that case, this article will attempt to provide a brief description of our state’s water laws in order to shed some light on what exactly the developers were trying to get an exemption from.

The water laws of Washington state are an extremely complex set of statutes. The information provided below presents only a superficial look at this complex system. The information that follows is primarily developed from two documents. Washington State Water Law: A Primer (Department of Ecology Publication #WR-98-152) and An Introduction to Washington Water Law published by the state Office of the Attorney General. Those interested in getting better acquainted with the state’s water laws should start with those publications.

The story of Washington water law begins with two doctrines for water appropriation that governed the right to use water as the nation developed through its colonization years: the riparian doctrine and the prior appropriation doctrine.

The riparian doctrine of water law allows for the historic reasonable use of water on land adjacent to a water source. The priority of water rights established under the riparian doctrine was based on the date action was taken to separate land from federal ownership. In times of water shortage all users curtail water use proportionally.

This worked reasonably well in the eastern United States where water was plentiful and most settlers could find land adjacent to a water source. Settlers moving to the arid west, however, needed another principle that allowed for the diversion of water away from the source to where it was needed for agriculture and industry.

This led to the prior appropriation doctrine. Under this doctrine, a water right is based upon the date water is actually put to beneficial use. In times of shortage, senior right holders have their needs satisfied first.

Until 1890, the state legislature wrestled with the problem of selecting the doctrine upon which to base the Washington water law. In 1873, the Washington Territorial Legislature recognized and established the law of prior appropriation.

In 1890, a year after Washington became a state, the legislature passed the first laws on water use for irrigation recognizing the riparian process for managing rights. Then, in 1891, the Legislature passed a more comprehensive set of laws governing water use that repealed the riparian elements of water management.

While the 1891 laws settled the issue for new rights, existing riparian rights would still be valid and recognized in later legislation. Significant portions of tribal water rights are based upon the riparian doctrine of water law.

In the early days of Washington statehood an individual needed to do little more than post a notice of intent or file a document with the county auditor to divert water; if no one protested, the right was established. With limited supplies, this inevitably led to conflict and a rash of lawsuits. In 1913, the Governor formed a commission to study the problem. The result of that commission was the 1917 Water Code.

The water code required individuals to file application for surface water right. The state was authorized to issue a permit to allow the applicant to develop the works necessary to put that water to beneficial use. The process is completed when water is actually put to beneficial use, at which time the state issues a water right certificate.

The water code required the state to answer four tests in making a decision on a new water right:

1. Is water to be put to a beneficial use (not wasted)?

2. Is water available?

3. Will an existing water right be impaired? and

4. Is the intended use detrimental to the public interest?

The water code also established a procedure by which the courts resolve conflicts and determine the validity and extent of all water rights on a given system called a general adjudication. It is important to note that only the courts can determine the extent and validity of a water right. State agencies can only advise on this issue. The 1917 Water Code did not address existing rights. That would be left to later legislatures.

By 1945 many people were using wells to access groundwater. The legal concepts of groundwater use were poorly defined at this time. In general, the right to use water under one’s property was considered similar to mineral rights that were attached to the property.

In 1945 the legislature enacted the Groundwater Code, establishing the same permitting process used for surface water. This law established two extremely important principles. First, it differentiated water flowing under one’s property from other attributes of the property and established the state’s jurisdiction over the appropriation and use of groundwater.

Second, it recognized the concept of hydraulic continuity between surface and groundwater within a legal framework. This concept is critical to the ability of the state to regulate groundwater use for the preservation of instream environmental values.

The state’s ability to protect instream environmental values was further enhanced in 1967 by the Minimum Water Flows and Levels Act. This act provided a systematic approach to instream flow protection. Under this law the state may establish minimum flows by administrative rule to protect fish, wildlife, water quality and other instream values.

The instream flows are established as a valid water right. Unfortunately, under the prior appropriation system, that water right has a priority date set by the date the flow rule is adopted. In times of shortage, senior water rights receive priority over instream flows.

Establishing a system of water appropriation dealt with only part of the problem. It took Washington approximately a hundred years to fully establish its system. Meanwhile the state grew and developed and people established claims to water under an incomplete and often-conflicting system. Today there are nearly 200,000 un-adjudicated claims to water. The state legislature has made several attempts to resolve this issue.

The 1967 Water Right Registration and Relinquishment Act directed the Water Resources Department (predecessor to the Department of Ecology) to register the amount and location of all pre-code water right claims. A water right claim is a statement of claim to water use that began before the state water codes were adopted, and is not covered by a water right permit or certificate.

A water right claim does not establish a water right, but only provides documentation of one if it legally exists. Ultimately, the validity of claimed water rights would be determined through general water right adjudications.

This law also established the relinquishment provisions of the water code. Under both common law principles and this statute, the right to use water is maintained by continually putting that water to beneficial use.

If water is not used for a period of five years, the right to use it is relinquished and the water is returned to the state for re-appropriation. The statute provides for certain circumstances of non-use under which the right would not be relinquished, such as military duty or non-use during times of drought.

Finally, further complicating the state water management scheme are federally reserved water rights. Congress explicitly waived sovereign immunity for general adjudications, effectively placing the administration of federal water rights under states’ jurisdictions. The state has limited ability to restrict federal reserved rights.

Furthermore, federal reserved rights are not quantified by the beneficial-use standard of the state system. The United States Supreme Court defined the scope of federal rights as “…only that amount of water necessary to fulfill the purpose of the reservation” (Cappaert, 426 U.S. at 141).

However, federal reserved rights are for potential future as well as historical use. Tribal water rights fall into the category of federal reserved rights.

Combine the chaotic development of the current water code, and the virtually unregulated use of water for nearly 200 years with the current appropriation system that must balance the individual interests, growth needs of the state and environmental values. Throw into the mix un-quantified federal reserved water rights. Sprinkle lightly with the threat of relinquishment and you have a recipe for catastrophe.

At the center of the storm is the state Department of Ecology. Constantly buffeted by legal decisions and legislative manipulations of the water code, Ecology has managed to satisfy no one. As a result, Ecology’s water resource program has been gutted, bringing to a virtual halt the evaluation of water right applications.

Applications for new water rights face a line that could take ten years or more to work through, with no certainty that the application will be approved and a permit issued.

In this environment, it should be clear why the development interests and growing communities have been chilled by the recent Supreme Court decision that has closed a loophole in the water code, but not provided a drop of water to meet ever increasing needs. §

Protecting Instream Flows: Washington state is the legally designated resource manager. How well does the state use its legal mechanisms to protect the natural resources of the state?

This article is repinted with permission of the South Puget Environmental Education Clearinghouse based in Olympia. It originally appeared in their publication, the South Sound Green Pages, a member-supported journal of environmental news and commentary.