Sharon Metcalf - Water Rights for Municipal Lawyers: The Basics, Ruthlessly
Water Rights for Municipal Lawyers: The Basics, Ruthlessly Simplified
WSAMA Fall Conference 1997
Sharon Metcalf, Assistant City Attorney, Seattle [ The opinions expressed in
this paper are those of the author alone, and not those of the Seattle City
Attorney, his office, or the City of Seattle.]
Cite as: "Water Rights Law for Municipal Lawyers: The Basics, Ruthlessly
Simplified," by Sharon Metcalf, Assistant City Attorney, Seattle, Legal Notes:
Proceedings of the Washington State Association of Municipal Attorneys' Annual
Fall Conference, October 8-10, 1997. MRSC Information Bulletin No. 499, October
Just as water is essential to all life, so also is a little knowledge of water
law essential to the municipal law practitioner. This paper provides a basic
summary of water law, but by way of introduction, here is a list of broader
questions relating to water supply that should set the context for your inquiry
into the water law issues that may face your client municipality.
- Where does the water consumed by your city's inhabitants come from
(what natural source or sources)?
- How, and by whom, is the water moved from the source(s) to
the household tap?
- Who (or what organization), if any, is legally responsible to continue
to supply it?
- Under what terms and conditions, e.g., for how many years into the
future does the obligation last?
- How much water is the provider required to make available? (What
if there is a general water shortage? What if your city's population grows
- How might the obligation to provide water be affected by a general water
- Who (or what organization), if any, is responsible for providing any necessary
treatment to make the water potable?
- Is your City's potable water in compliance with all known and foreseeable
drinking water standards?
- What is the nature of the provider's water right, and how secure
is that right?
As noted, providing you with a basic understanding of the legal framework for
answering this last question is the focus of this paper, but all of these questions
are obviously interrelated in important ways.
II. KEY TERMS AND CONCEPTS IN WASHINGTON WATER LAW
A. The Fundamentals
Fundamental Principle #1: All water "belongs" to the public.
Although "water rights" are generally regarded as property rights,
they have unique attributes. A water right is simply a right to use water.
Such rights are administered and regulated by state government, with both the
judicial branch and the Department of Ecology currently having major roles.
Fundamental Principle #2: First in time is first in right. The key concept
in the common law of water rights in the western United States, underlying the
famous "doctrine of prior appropriation," was that one acquired a
right simply by putting water to beneficial use -- that is, starting to use
it before someone else did. [ The western doctrine of prior appropriation is
frequently contrasted with the older, more typically eastern "riparian
rights" doctrine, which gives preference to those owning riparian property.
In practice, the two approaches are not as distinct as is commonly assumed.
See, for example, Department
of Ecology v. Abbott , 103 Wn.2d 686, 694 P.2d 1071 (1985).] The fundamental
attributes of a water right derive from this basic concept, because the use
you make of water is specific as to
- priority date (when it was first used)
- quantity of water used (at time the right is perfected [ "Perfection"
of a water right is a critically important concept related to vesting of rights,
yet it is often misunderstood. Perfection acknowledges that it takes a certain
amount of time to develop a right, and occurs at the point in time that the
"full" beneficial use of a water right is made. Thus the amount
of a right is not necessarily limited to an amount withdrawn during the first
unit of time after the intent to appropriate exists. Rather, one is allowed
a "reasonable time" to perfect a right to its full extent, so long
as one employs "due diligence," although the priority date relates
back to the time of the original appropriation. "Inchoate" rights
is the term used for the quantity of water which has not yet been perfected
through full beneficial use. Lack of certainty as to when a right has become
perfected, and for what quantity of water, is one of the key contributors
to uncertainty surrounding older water right claims, and particularly municipal
claims, since the period during which the right is perfected may be particularly
- specific type of beneficial use(s) made of the water [ The most common categories
of uses include irrigation, domestic, industrial, and municipal use. There
is no exclusive list of uses, and neither are there statutory or regulatory
definitions of these terms.]
- point of diversion
- place of use
Some lesser fundamentals flowed from these concepts: First, once these attributes
were established, they could not be changed without acquiring a new water right.
Second, when lower than normal rainfall meant water was in short supply, the
priority date determined who got water, since holders of rights with earlier
priority dates were entitled to fully satisfy their rights before those with
later priority dates could get any water at all.
Fundamental Principle #3: Use it or lose it. Not surprisingly, along
with the emphasis on beneficial use goes the idea that if you don't use
your water right -- either all or a portion of it, there is someone else out
there who ought to have the chance to use the water. The term for this is "relinquishment,"
and it is now governed by statute. [ Generally, nonuse for a period of five
consecutive years results in relinquishment. However, water used for "municipal
water supply purposes" was exempted from relinquishment by RCW 90.14.140.
There is significant uncertainty about whether that provision applies to PUDs
and private water districts, and hence considerable resultant anxiety among
those dependent upon such suppliers.] This principle may sound like it establishes
clear incentives for wasting a precious resource, and to some extent that is
true. However to mitigate those tendencies, water law also contains powerful
countervailing proscriptions against wasting water.
Fundamental Principle #4: Modern water law is a jumbled mix of common law
and statute law. Washington law is an uneasy blend of common law principles
dating back to the early days of the state, with overlays of statute. The first
major legislative enactment was the 1917 Water Code (RCW Chapter 90.03), which
added a permit system. Several subsequent piecemeal "reform" efforts
add to the complexity. The result is a jumble, which nearly everyone would like
to "fix." There is a substantial, though by no means comprehensive,
body of caselaw, [ The available caselaw is of variable quality, and western
states' courts tend to cite each other's caselaw, sometimes not recognizing
that common law principles have been modified by statutes.] but there are virtually
no regulations currently in place.
B. The Process: Claims, Permits, and Adjudication
Older rights, acquired prior to adoption of the Water Code in 1917, are known
as water right "claims." The legislature has, at various times,
required all claims to be "registered" with Ecology or else be forfeit,
but they keep giving people another chance to do this. (Last session, yet another
window of opportunity was opened, until the end of next June.) Many claims may
be somewhat vague as to how well the attributes, listed above, are specified.
This can make for a certain amount of insecurity, both for the claim holder
and for others with junior rights in the same water body.
New rights (since 1917 for surface water and since 1945 for ground water) can
only be acquired through the issuance by the state of a water right permit.
Obtaining a permit is essentially a three step process, as follows:
1) First, the applicant files an application with the state, thereby
establishing its priority date.
2) Ecology then undertakes to determine that the water will be put to beneficial
use, that water is available for appropriation (without impairing senior rights,
including minimum stream flows established to protect wildlife), and that the
permit is in the public interest (publication and a comment period are required).
Once processing is complete, Ecology will issue a water right permit.
(At current Ecology staffing levels, this can take several years.) This permit
authorizes the holder to begin putting water to beneficial use, and specifies
various terms and conditions, usually prescribing a time period in which full
beneficial use must be made.
3) Once development of the water is complete, the permit holder files a "proof
of appropriation" and requests that Ecology issue a water rights certificate.
Certification of a permit is analogous to perfection of a claim, in that it
establishes the final parameters of the right, usually including both an instantaneous
maximum quantity that can be withdrawn (known as Qi, and measured in cubic feet
per second or gallons per minute), and an annual total amount (known as Qa,
and measured in acre feet or gallons per year). Any change in those parameters
can only be accomplished by application to Ecology for a change. The Pollution
Control Hearings Board has a role in reviewing Ecology actions in administering
the permit system. As is the case with claims, many of the older permits don't
clearly specify some of the attributes of the right, leading to uncertainty
both for the permit holder and for others.
"Adjudication" is the statutory process for resolving questions
and disputes about water rights. It is a Superior Court proceeding initiated
by the Department of Ecology. Adjudications examine all asserted rights within
a geographic area (usually a watershed or river basin) in one proceeding, and
establish amounts and priorities among the competing parties. In practice, only
a very few adjudications have ever been undertaken in Washington State -- although
they are fairly common in other states, such as Colorado, which has a whole
elaborate structure of water courts. There is one adjudication currently proceeding
in the Yakima River basin known as the Acquavella proceeding. It has been underway
since 1977, involves some 2500 claimants, and has so far resulted in three Supreme
Court decisions. [ See Department of Ecology
v. Acquavella , 100 Wn.2d 651, 674 P.2d 160 (1983); Department
of Ecology v. Yakima Reservation Irrigation District , 121 Wn.2d 257, 850
P.2d 1306 (1993); and Department
of Ecology v. Acquavella , 131 Wn.2d 746, 935 P.2d 595 (1997).] Given that
precedent, it is not surprising that there are few water right holders eager
to subject themselves to the adjudication process.
III. CURRENT HOT ISSUES IN WATER LAW
(Note: Issues of particular concern to municipalities will be addressed by
another conference speaker.)
A. How will conflicts among water rights holders be resolved?
In 1993, in a case that stunned water law practitioners, the Washington Supreme
court struck down an Ecology-issued cease and desist order, and along with it,
Ecology's long-asserted authority to determine priorities among water rights,
and issue orders enforcing those priorities. See Rettkowski
v. Department of Ecology, 122 Wn.2d 219, 858 P.2d 232 (1993). The case
arose in the context of a small stream in Lincoln County, aptly known as Sinking
Creek, and represented a classic battle between farmers and ranchers. Ecology
had sided with the ranchers, determining that their surface water rights had
priority over subsequently acquired agricultural ground water rights in the
basin which, Ecology further determined, were reducing flows in the creek, to
the detriment of the ranchers.
The court concluded that the water right adjudication process specified in
the Water Code (RCW 90.03) was the exclusive mechanism for resolving conflicts
over water rights. It said that Ecology could make tentative determinations
concerning water rights as necessary for administering the permit system, but
that the superior courts of Washington had exclusive jurisdiction to make final
determinations concerning the priority, amount, or other attributes of water
While the dire predictions of anarchy which greeted this decision may not have
materialized, there is no question that it raised very unsettling questions
about the process of water right administration in Washington, and about the
validity or meaning of water rights. It also left the aggrieved parties with
no practicable remedy. Given that the process for general adjudications is so
phenomenally cumbersome and expensive, it seems clear that a legislative fix
is in order, either to streamline adjudications or to establish an alternative
dispute resolution mechanism, presumably with significant roles for Ecology
and the Pollution Control Hearings Board.
B. How will water right permit applications be processed?
A second "bombshell" decision was loosed by the Supreme Court last
spring, in the case of Hillis
v. Department of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997). A slim
majority of the court upheld Ecology's approach to processing water rights applications,
but admonished the agency not to neglect formal rulemaking. The court ordered
all processing of applications to cease until such time as appropriate rulemaking
had been conducted.
By way of background, Ecology has been severely understaffed in recent years,
as its budget has been held hostage to legislative wrangling over how to reform
water rights administration. Processing of permit applications is thus seriously
backlogged. (The Hillis's applications were filed in 1992, and the court found
the backlog to be some 5,000 applications.) Partly as a matter of efficiency,
Ecology had resolved upon an approach to permitting which basically processed
permit applications in batches, focusing on each watershed in turn via a process
called "watershed assessment," and addressing all of the applications
in that watershed before moving on to the next. This approach thus ignored the
concept of "first in, first out," in favor of an alternative approach.
Ecology promptly issued an emergency rule (WAC Chapter 173-152) allowing it
to process certain applications in the interim, while it pursues rulemaking
to establish its overall procedure. It can be predicted, however, that the road
will remain rocky and many permit applications will effectively remain in limbo
for a significant time to come.
C. How much can we look to ground water as a source, where streamflows are
The buzzword for this issue is "hydraulic continuity," which is a
term describing the physical connection between ground and surface water. Common
sense (or grade-school science) tells us that if we pump water out of a well
in the near vicinity of a surface water body, we are intercepting a certain
amount of water that would otherwise remain in, or move to, the surface water
body. However the precise nature of this interconnection is difficult to discern,
depending on a host of physical variables.
In administering the water rights permit system, Ecology has adopted what is
known as "the one molecule theory," which in effect amounts to a very
strong presumption that hydraulic continuity is complete and total. Based on
this theory, the agency writes conditions in new ground water permits which
essentially make them subject to senior surface rights, including minimum streamflow
requirements in nearby surface water bodies. Or, if minimum flows (established
through rulemaking in order to protect aquatic life in the stream) are not being
met, the Department will simply deny new ground water permits in the area. (In
January of 1996, Ecology applied its strict theory of continuity in denying
several hundred ground water permit applications, an action which was upheld
by the PCHB on summary judgment in the consolidated appeals of the permit denials.
[ See In the Matter of Appeals from Water Rights Decisions of the Department
of Ecology , PCHB Nos. 96-8 [and various case numbers through 96-181], Order
on Motions for Summary Judgment, July 17, 1996. This decision is currently on
Last May, the Court of Appeals in Hubbard
v. Department of Ecology, 86 Wn. App. 119, 936 P.2d 27 (1997), leant
considerable support to Ecology's approach, holding that even if the amount
proposed to be pumped from groundwater was itself insignificant, as long as
there was evidence of even a "minute" degree of hydraulic continuity
with an over-appropriated surface stream, the groundwater well was "significantly
connected" to the surface stream within the meaning of the minimum flow
protection rule. In addition, various interests have been pushing for legislative
solutions to what they view as an unreasonable agency position, but the governor's
office has held firm against formulations which some would characterize as extreme
in the other direction, and inadequately protective of surface streams. [ The
hydraulic continuity issue is exacerbated by the fact that Washington law essentially
exempts from regulation any well which withdraws less than 5,000 gallons per
day. These "exempt wells" -- now numbering in the tens of thousands
-- represent salvation to some, given the water rights logjam which currently
exists, but they also are playing havoc with resource management.]
D. What will be Washington's approach to watershed planning?
"Watershed planning" is a concept that involves taking a comprehensive
and long-term approach to managing water needs and water availability on a geographic
(watershed) basis. In its broadest formulation, it would address both water
quality and water quantity issues, and would vest local councils of stakeholders
with significant authority to make resource management decisions. Various interests
in Washington have been pushing the concept for some time, and a relatively
comprehensive bill [ H.B. 2054, commonly known as "the Chandler bill."]
was passed by the legislature last session, only to be substantially -- but
not entirely -- vetoed by Governor Locke. However further developments in this
direction appear almost certain, perhaps under the leadership of the Joint Natural
Resources Cabinet (commonly referred to as "the Jay-narc"), appointed
by Locke last spring.
Significant questions about watershed planning in this state which remain to
be resolved include the following:
- Will it be voluntary or mandatory?
- What will be the scope of the effort, for example, will quality and quantity
both be addressed?
- Who will be at the table (and who, if anyone, will have a lead role?) --
cities, counties, water purveyors, industry, agriculture, tribes, state agencies?
- Will it function as a consensus-based process only, or will there be voting?
(If the latter, how is the voting structure established?)
- What will be the significance of any outcome? (Will it bind state agencies
and/or other governmental bodies?)
Few would disagree that the combination of population pressures and the beleaguered
status of anadromous fish stocks, in particular, are presenting this state with
critical water resource issues. Water law in Washington is in a time of acute
crisis because the mechanisms we have relied on to allocate water and resolve
disputes no longer seem up to the task. Local governments play a special role
in assuring to their citizens the continued availability of a domestic supply
of this essential element of life, but they also must acknowledge the social
value of other water uses, including agricultural and industrial uses as well
as wildlife protection. Local officials and their advisers should be thinking
hard about what role they want to play in shaping state water policy for the
V. ANOTATED LIST OF CITATIONS AND RESOURCES
The "Water Code," originally adopted in 1917, is now codified at
RCW Chapter 90.03. Additional provisions affecting water rights are scattered
through Title 90, some of the more important ones being Chapter 90.14 (claim
registration, relinquishment), Chapter 90.22 (minimum instream flow requirements),
Chapter 90.44 (ground water), and Chapter 90.54 (water resource planning).
Regulations are currently sparse, but you can find relevant provisions scattered
through the Ecology regulations in WAC Title 173. Minimum stream flow regulations
are in the WAC 173-500 series. Rulemaking is currently in process to deal with
the Hillis crisis, and an earlier effort begun a couple of years ago to develop
more comprehensive regulatory framework will presumably be resumed once policy
direction becomes more clear. Ecology apparently plans to codify these regulations
in WAC 173-152.
Ecology water right permits are administered out of the agency's four regional
Ecology has been making great progress in making information available on the
Internet. You can start your search at the Ecology home page, [http://www.wa.gov.ecology],
or go directly to water resources issues at [.../ecology/shwr/wrhome.html].
Materials available on-line include some policy and analysis documents, new
regulations, and information from Ecology's data base on water rights applications,
permits, certificates, and registered claims.
The Washington Water Utility Council ("the WWUC") tracks water rights
issues quite closely. Its work groups comment on legislation and regulations,
lobby, and at times intervene in legal proceedings on behalf of the membership.