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Water Rights in Washington: Historic Roots/Current Issues

Washington Water Law 2008 Conference

Law Seminars International CLE – April 10-11, 2008

Jeff B. Kray

Marten Law Group PLLC

Overview

This presentation will:

Introduce basic tenets of Washington water law

Tie those tenets to their historic roots

Explore current water use issues that other speakers will expand upon later in the conference:

Tribal and federal water rights

Water for municipal growth

Intersections between water resource and water quality laws

Context – Past v. Present The Past

Water use in Washington Territory began to develop in the late 1800s in an agricultural and industrial context.

Water, in relation to population, was fairly abundant, particularly in Western Washington.

Disputes, if any, over water were primarily local.

The Present Washington water use regulation has developed to address

modern environmental and domestic interests in water, as well as historic agricultural and industrial uses.

Population is growing and water demand is increasing, even in Western Washington.

Modern disputes over water are complex and far-reaching.

Context - Water “Words” Words from the Past - Washington’s 1889 Constitution

Irrigation Mining Manufacturing Public Use

Words for the Present - LSI’s 2008 Water Conference Brochure Instream flows Climate change and endangered species Mitigation Interstate allocation Tribal water rights Reclaimed water Municipal Water Law

Basic Concepts - Usufructuary Character of Water Rights

Water law is a subset of property law.

Due to hydrologic cycle, water can be used but not permanently possessed.

Hence, rights to water are use rights,

Protected by the 5th Amendment.

Basic Concepts - Water Use: Consumptive v. Non-consumptive Consumptive uses

Drinking Cleaning Irrigation Industrial (e.g., energy production)

Non-consumptive uses Power production using water flow Navigation Recreation (e.g., fishing and swimming) Scenic enjoyment Wildlife habitat

Water “Roots” in Washington Territory

Washington Territory created 1853 No legislation on water rights

Territorial Legislature of Washington’s 1856 Act Common law recognized in all civil cases

Washington territorial laws begin to recognize elements of prior appropriation Yakima County 1873 – Declares right to appropriate

water in Yakima County streams without regard to riparian statutes. 18 Wash. Terr. Laws, pp. 520-522.

Kittitas County 1885 – Yakima County legislation extended to Kittitas County.

Water as a “Public Use”

Washington Constitution approved 1889 Agriculture and Industry recognized as “public use” of

water “The use of the waters of this state for irrigation,

mining, and manufacturing purposes shall be deemed a public use.” Wa. Const. Art. XXI, § 1.

Constitutionally recognized list of “public uses” is not exclusive and does not preclude legislature from declaring other purposes public uses. State ex rel. Anderson v. Superior Court, 119 Wash. 406 (1922).

Washington is a Dual System

Washington recognizes both: Riparian water rights, and Prior Appropriation water rights.

These rights are primarily governed by state law. What are Washington’s Key Water Codes?

1917 Water Code – Centralized state water administration and prior appropriation for all new water rights.

1945 Ground Water Code – Extended permit system to ground water.

1967 Minimum Water Flows and Levels Act – Provided systematic approach to instream flow protection.

1967 Water Claims Registration Act – Established statutory relinquishment.

Riparian Rights

Rights to water in a watercourse upon or along one’s land. A watercourse is, e.g., a stream or a lake.

Nature of Riparian Rights Doctrine: A rule of capture

Need to avoid tragedy of the commons

Solution: Limit character and extent of use

Limits On Riparian Water Use

Limits where water may be used: Confers a right to use water only on the riparian land itself. No right of use on nonriparian land even if same owner.

Limits who may use the water: Confers a nontransferable right to the riparian landowner. Riparian rights “run with the land” and may not be sold

separately. They are an incident to the land title.

Limits how the water may be used: May not injure rights of other users. Use must be reasonable.

Prior Appropriation Rights Water rights based on actual beneficial use, not land

ownership.

Senior users are entitled to full satisfaction to the extent of their prior use before junior users may take any water.

Rights may be transferred independent of land.

Criteria:

Water available

For beneficial use

No impairment

No detriment to public interest

Development of Prior Appropriation System Originally, self-help

Posting of notice at site of diversion Filing of claims in public records

Today, obtaining a certificate from Washington Department of Ecology. Key steps: Application Public Notice, Record of Examination (ROE), Appeals Permit Beneficial Use Certification

Federal Reserve Rights Rights to water that has entered the federal public

domain … … reserved for the benefit of

Indian reservations, Forest preserves, National parks, and National monuments.

Source of Federal Reserve Rights Arise by implication from anticipated needs of the

beneficiaries just listed … … or from the express language of treaties, acts of

Congress, or executive orders.

Scope and Priority of Federal Reserve Rights

Scope of rights is very uncertain, particularly allowable uses and quantities.

These are rights “reserved” to potentially huge amounts of water that have priority over subsequently created private rights to the same source.

Current Issues – Tribal Water Rights

Winters 100th Anniversary Three examples of modern tribal role:

Litigation (instream flow mitigation) - Squaxin Island v. Miller Land

Negotiation - Lake Roosevelt AgreementLitigation/Negotiation/Regulation -

Lummi Settlement

Current Issues – Municipal Growth

2003 Municipal Water LawCurrent Litigation:

Lummi v. Ecology Cornelius v. Ecology

Water Use Efficiency and Department of Health

GMA (Growth Management Act) LID (Low Impact Development)

Current Issues – Water Quality/Water Resource Intersection

Population Increases/Growth/Climate Change: “new water” and new challenges

Examples:Lake Roosevelt Agreements and

drawdown Reclaimed waterASR (Aquifer Storage & Recovery)

Conclusions Water rights in Washington are tied to policies set

in the historic roots of Washington water law.

Water law is continuously evolving from those historic roots to address modern water needs and conflicts.

Water law’s evolution slows when it meets the boundary of constitutionally protected property rights in water use.

Question: where does water law’s evolution stop?

Thank you.

For additional information on today’s topic, please contact:

Jeff Kray

Tel: (206) 292-2608Email: jkray@martenlaw.comWeb: www.martenlaw.comNews: www.martenlaw.com/news