GENERAL WATER LAW
By
Tom McDonald
Assistant Attorney General
Water Section Chief, Ecology Division
Reproduced by permission of author. Legal Notes, Proceedings of the Washington State Association of Municipal Attorneys' Annual Fall Conference, October 8-10, 1997. MRSC Information Bulletin No. 499, October 1997
The following is a revised portion of a brief in Theodoratus v.
Ecology
Thurston County Superior Court No. 95-2-01452-3
1.The waters in the state belong to the public.
The waters within the state belong to the public, or are publici juris, and are not subject to private ownership. RCW 90.03.010.1 Rigney v. The Tacoma Light & Water Co., 9 Wash. 576, 583, 38 P. 147 (1894) 2 ; Ecology v. Bureau of Reclamation, 118 Wn.2d 761, 827 P.2d 275 (1992); California Oregon Power Co. v.Beaver Portland Cement Co., 295 U.S. 142 (1935);3 Morris, Washington Water Rights--A Sketch, 31 Wash. L. Rev. 243, 252.
A person may obtain a right to use the water of the state. This right does not vest a person with an ownership interest, but only authorizes "a usufructuary right," which is a right to use the water. Rigney, supra at 583; Bureau of Reclamation, supra at 761; Morris, supra at 252. 1 Wiel, Water Rights in the Western States, §18 at 18, 20 (3d Ed. 1911); Hutchins, Selected Problems in the Law of Water Rights in the West, at 27 (1942).
In granting a usufructuary right to the water, the state retains control of its use and does not part with ownership. Id. Jicarilla Apache Tribe v. United States, 657 F.2d 1126, 1133 (10th Cir. 1981). An appropriator owns no title to the water, and only obtains a personal property interest in the "molecules" of water which the appropriator has diverted and has under his or her "control and possession". Bureau of Reclamation, supra at 767. If a right to use water is not being exercised, the water must remain in the stream to be available to satisfy other rights. State ex rel. Liberty Lake Irrigation Company v. Superior Court, 47 Wash. 310, 91 P. 968 (1907); Miller v. Wheeler, 54 Wash. 429, 103 P. 641 (1909); Elgin v. Weatherstone, 123 Wash. 429, 212 P. 562 (1923).
2.State water laws codify the common law prior appropriation doctrine.
The state of Washington follows the "prior appropriation doctrine" in the administration and regulation of water rights. In Re Alpowa Creek, 129 Wash. 9, 13, 224 P. 29 (1924). The prior appropriation doctrine was first developed in the gold mining days in California. Irwin v. Phillips, 5 Cal. 140, 147 (1855). It evolved out of the custom of water use in the arid West, where water has and increasingly continues to be considered a scarce commodity and cannot be hoarded for speculative purposes. Tarlock, Law of Water Rights & Resources, § 5.02(1) at 5-5; See also Coffin v. The Left Hand Ditch Co., 6 Colo. 443 (1882); Rocky Mountain Power Co. v. Colorado River Water Conservation District, 646 P.2d 383 (Colo. 1982). Hutchins, supra at 64-68.
Under the common law appropriation doctrine, water rights were established when a person had the intent to divert water for beneficial use, and exercised due diligence in constructing the diversionary works and applying the water to a beneficial use. Thompson v. Short, 6 Wn.2d 71, 106 P.2d 720 (1940); Madison v. McNeil, 171 Wash. 669, 19 P.2d 97 (1933); Tarlock, Law of Water Rights & Resources, § 5.10, at 5-54.
Once an appropriation was complete by the application of water to a beneficial use, the right "related back" to the date one showed the necessary intent to use the water. Hunter Land Co. v. Laugenour, 140 Wash. 558, 565, 250 P. 41 (1926); Morris, supra at 257; Tarlock, Law of Water Rights & Resources, § 5.14(2), at 5-69. This date is called the priority date forthat right, and in times of water shortages it allows the user to continue to withdraw water to the detriment of all those who have later priority dates ("junior rights"). In turn, the user must cease withdrawing water if it will impair the use of water by those who have earlier priority dates ("senior rights"). Id.
In 1917, the State Legislature enacted the first comprehensive water code. Ch. 90.03 RCW. This law codified these elements of the appropriation doctrine into an administrative permitting process. Ch. 90.03 RCW; In the Matter of Deadman Creek, supra. In 1945 the same process was codified for groundwater. Ch. 90.44 RCW.
Under the Water Code, a person who wants the right to use water must file an application with Ecology. RCW 90.03.250. Ecology must investigate and determine whether the proposed use is a beneficial use of water, whether water is available for the use, whether the use of water will injure existing rights to the use of water, and whether the use will be in the public interest. RCW 90.03.290. A permit is issued only if Ecology answers all of these questions in the affirmative. Id.; Stempel v. Dept. of Water Resources, 82 Wn.2d 109, 508 P.2d 166 (1973). Ecology's decision to issue a permit is a discretionary act. Schuh v. Dept. of Ecology, 100 Wn.2d 180, 667 P.2d 64 (1983); Peterson v. Dept. of Ecology, 92 Wn.2d 306, 596 P.2d 285 (1979).
The code provides Ecology with the discretion to determine the periods of time for the diligent construction of a project and the application of water to beneficial use. RCW 90.03.320. Actual construction work shall be commenced on any project for which a permit has been granted within such reasonable time as shall be prescribed by the department, and shall thereafter be prosecuted with diligence and completed within the time prescribed by the department. The department, in fixing the time for the commencement of the work, or for the completion thereof and the application of the water to the beneficial use prescribed in the permit, shall take into consideration the cost and magnitude of the project and the engineering and physical features to be encountered, and shall allow such time as shall be reasonable and just under the conditions then existing, having due regard for the public welfare and public interests affected; . . . .
RCW 90.03.320. (Emphasis added.)
Ecology may extend these time periods "for good cause".
And, for good cause shown, it shall extend the time or times fixed as aforesaid, and shall grant such further period or periods as may be reasonably necessary, having due regard to the good faith of the applicant and the public interests affected.
Id.
If a permit holder fails to comply with the terms of a permit or any extensions, Ecology must cancel the permit unless the person can show good cause to Ecology why the permit should not cancel. Id. A certificate will issue when conditions of the permit or its extensions are met. RCW 90.03.330. Issuance of a certificate is not an adjudication or final determination of the water right. Mack v. Eldorado Water District, 56 Wn.2d 584, 354 P.2d 917 (1960); Madison, supra at 680.4 When the right is acquired by the appropriation of water, the right relates back tothe date the application was filed with the department. RCW 90.03.340.
3.A vested property right in the use of water is created when an appropriation is completed by application of water to a beneficial use.
A "vested" water right is a term of art, defining a water right as a real property interest. See Rettkowski v. Department of Ecology, 122 Wn.2d 219, 228, 858 P.2d 232 (1993); Ecology v. Grimes, 121 Wn.2d 459, 474, 852 P.2d 1044 (1993); Neubert v. Yakima-Tieton Irrigation District, 117 Wn.2d 232, 237, 814 P.2d 199 (1991).
A water right "vests" into a real property right only when an appropriation is complete. Ickes v. Fox, 85 F.2d 294, 298 (1936), aff'd, 300 U.S. 82, 81 L. Ed. 525, 57 S. Ct. 412, rehearing denied, 57 S. Ct. 500, 300 U.S. 640. Lawrence v. Southard, 192 Wash. 287, 298-299, 73 P.2d 722 (1937); Ellis, 1 Wash. 572 (1889). An appropriation is not complete until the final steps in a project are finished and the water is applied to a beneficial use. Id.; Morris, supra at 252, 258; 2 Beck, Waters and Water Rights, § 14.03(d) (1991).
Beneficial use is the linchpin of the prior appropriation doctrine. Id. Tarlock, Law of Water Rights & Resources, § 5.16; p. 5-84. It is the actual use of water; defined as the measurement and limitation of a water right. Grimes, supra at 468; Wiel, Water Rights in the Western States, § 478, at 504 (1911).
Beneficial use refers to the quantity of water diverted by the appropriator,
not to its availability in the source of supply. [Citations omitted.]
. . .
Beneficial use' is a term of art in water law, and encompasses two principal elements of a water right.
First, it refers to the purposes, or types of activities for which
water may be used.
. . .
Second, beneficial use determines the measure of a water right. . . . To determine the amount of water necessary for a beneficial use, courts have developed the principle of 'reasonable use'. Reasonable use of water is determined by analysis of the factors of water duty and waste. [Citations omitted.]
Ecology v. Grimes, supra at 468. (Emphasis added.) Tarlock, supra at § 5.16, 5-84.
Washington water law has always been interpreted as establishing a vested property right in water only to the extent the water is put to actual use.
Once appropriated, the right to use a given quantity of water becomes appurtenant to the land. The appropriated water right is perpetual and operates to the exclusion of subsequent claimants.
The key to determining the extent of plaintiffs' vested water rights is the concept of 'beneficial use' . . . . An appropriated water right is established and maintained by the purposeful application of a given quantity of water to a beneficial use upon the land.
(Citations omitted.) (Emphasis added.) Grimes, supra at 467-468; quoting Neubert v. Yakima-Tieton Irrigation District, 117 Wn.2d 232, 237, 814 P.2d 199 (1991). See also Ecology v. Acquavella, 100 Wn.2d 651, 655, 674 P.2d 160 (1983); Lawrence v. Southard, 192 Wash. 287, 73 P.2d 722, 115 A.L.R. 1308 (1937); Longmire v. Smith, 26 Wash. 439, 67 P. 246 (1901); Ickes v. Fox, supra; In Re Alpowa Creek, 129 Wash. 9, 13, 224 P. 29 (1924); United States v. Ahtanum Creek, 330 F.2d 897 (1964).
Mere diversion and storage of water does not constitute a complete appropriation. Ickes, supra at 298; Lawrence, supra at 298. Recent articles on Washington water law confirm this analysis:
The appropriation of water is rooted in the idea of taking physical possession-removing
water from a natural source and applying it to some useful purpose elsewhere.
. . . [Citing State ex. rel. Reynolds v. Miranda, 493 P.2d 409 (N.M.
1972).]
. . . .
An appropriation does not ripen into a real property interest until the
water is used.
11 Dufford, Washington Water Law: A Primer, "illahee", at 30 (1st & 2d Eds., 1995).
[A]n established water right . . . only consists of that amount of water
historically put to beneficial use
. . . .
Roe & Rasband, Changes to Water Rights, "The Natural Resources Law Manual," at 345 (1995).
4.A person may have an inchoate right for water that has not yet been put to beneficial use.
In contrast to a vested water right, a person may hold an "inchoate appropriative right" for water that has not been put to use. Generally, this right is defined as:
An incomplete appropriative right in good standing, that comes into being at the taking of the first step provided by law for acquisition of an appropriative right. It remains in good standing so long as the requirements of law are being fulfilled. And it matures into an appropriative right on completion of the last step provided by law.
1 Hutchins, Water Right Laws in the Nineteen Western States, at 226.
This definition is consistent with this state's statutory recognition of inchoate rights:
Nothing in this chapter contained shall operate to effect an impairment of any inchoate right to divert and use water while the application of the water in question to a beneficial use is being prosecuted with reasonable diligence, having due regard to thecircumstances surrounding the enterprise, including the magnitude of the project for putting the water to beneficial use and the market for the resulting water right for irrigation or power or other beneficial use in the locality in question.
RCW 90.03.460. (Emphasis added.)
This language mirrors the language in the due diligence requirements of the Water Code, RCW 90.03.320; recognizing that these are rights for the development of a project which is not yet complete, and that the water has not been put to actual beneficial use. These inchoate rights remain valid as long as the person continues to complete the appropriation with reasonable or due diligence. Hutchins, supra at 584. Inchoate rights have been recognized in adjudications from the earliest days, but have never formed the basis for final confirmed rights because of their nascent character. See, e.g., In Re Crab Creek & Moses Lake, 134 Wash. 7, 235 P. 37 (1925). However, while one's rights are inchoate, it has long been understood that the holder thereof does at least have standing to object to other claims of right to waters from the same source. State v. American Fruit Growers, 135 Wash. 156, 237 P. 498 (1925); Brown v. Chase, 125 Wash. 542, 217 P. 23 (1923); In Re Stranger Creek, 77 Wn.2d 649, 466 P.2d 508 (1970).
The distinction between vested and inchoate water rights is important. This distinction is rooted in the primary intent of the prior appropriation doctrine and the Water Code, which is to maximize the beneficial use of water and provide for the effective management of the state's limited water resources. RCW90.54.020(2); RCW 90.14.010; In the Matter of Deadman Creek, supra. The analysis in Deadman Creek is instructive because it explains the policy reasons for diligently applying water to beneficial use. Dormant rights, such as unexercised riparian rights,5 caused a lack of certainty in administering water use and maximizing its use. Certainty can only be accomplished through the requirement that one exercise due diligence in putting water to use. Id. The court held that the Legislature, by enacting the 1917 Code, rejected the dormant nature of riparian rights. Pursuant to the standard of due diligence in the Water Code, the court held that fifteen (15) years from the enactment of the 1917 Water Code was a reasonable period of time for unexercised riparian rights to be put to use. Id.; See also In Re Alpowa Creek, supra.
While vested water rights provide certainty through the actual use of water, inchoate rights provide certainty only to the extent the actual use of water will occur within a reasonableperiod of time through the diligent construction and completion of the development.6
Ecology has in the past exercised its discretion to issue certificates for the inchoate rights of a municipality and large residential developments. By so doing, Ecology recognized the substantial nature of an inchoate right where the entity has fully constructed its pipes to the individual lots and thereby shown the necessary intent that it actually will be using the water within a reasonable period of time for the specific purpose and place of use authorized by Ecology. The risk of speculation or hoarding of unused water is so minimized that for administrative convenience Ecology has allowed certificates to be issued to these entities. In issuing certificates under these circumstances, Ecology has no intent to convert inchoate water rights to permanent, vested status. Even if it had such intent, it would be beyond Ecology's authority to confer a valuableproperty right for which the water right applicant has not met the legal requirements of beneficial use and due diligence.7
5.The statutory and case law in this state make no distinction among uses of water for the purpose of determining when a right to use water vests into a real property right.
When the Legislature passed the Water Code in 1917, it
exempted no uses from the equal treatment under the requirements of the permit system.
[A]ll waters within the State belong to the public, and any right thereto, or to the use thereof, shall be hereafter acquired only by appropriation for a beneficial use and in the manner provided and not otherwise.
RCW 90.03.010.
In In the Matter of Deadman Creek, supra, the court held that in 1917 the Legislature specifically rejected the element of the riparian doctrine which gave some uses of water preference over other uses. The riparian doctrine has priorities for specific uses of water, the highest use being domestic or natural use. Morris, supra at 248. "Natural uses arise out of the direct necessities of life, e.g. household uses, drinking, washing and watering domestic animals, and these uses are of a higher priority than irrigation." Id. at 248.
The 1917 Water Code does not, the Court held, provide for the same privileges or exceptions for domestic use that were recognized in the riparian doctrine:
No exception is made for waters devoted to 'ordinary', 'natural' or 'domestic uses.'
Deadman Creek, supra at 692.
The court held that riparian rights, even for domestic uses, had to follow the foundations of the prior appropriation doctrine, and as such, water had to be put to beneficial use in order for the right to become an established right. Id. The court held that it was reasonable for all riparian owners to have put the water to use by 1932, which was 15 years after the 1917 Water Code was passed. After that time, any unused water rights reverted to the state. Id. at 697.
The supreme court's rejection of special treatment for uses under the 1917 code is consistent with two formal Attorney General Opinions. While these opinions are not controlling, they are given weight by the courts. Elovich v. Nationwide Insurance Co., 104 Wn.2d 543, 550, 707 P.2d 1319 (1985). In the first opinion, the Attorney General found:
[N]o exemption or exception is made to municipal corporations from operation of the act, and, . . . it was the intention of the legislature to require municipal, as well as other corporations, to comply with the act.
AGO 1927-28 at 876, 880.
The issue again arose in 1963, pursuant to a request for a formal Attorney General Opinion on whether the appropriation of a public domestic water supply requires a permit and isspecifically subject to the requirements of due diligence under RCW 90.03.320. AGO 1963-64, No. 117. The Attorney General answered in the affirmative. A public utility district is required to follow the requirements of the statute the same as other types of beneficial use. Id. at 4.
6. Other Issues
a. Forfeiture and Abandonment. See Ch. 90.14 RCW.
b. Transfers and Changes. See RCW 90.03.380.
c. Groundwater Code. See Ch. 90.44 RCW.
d. Instream Flows. See Chs. 90.22, 90.54 RCW.
Footnotes
1 See for reference purposes, the same definition and analysis in other western states. 2 Beck, Waters and Water Rights, § 1201 at 85-90 (1991). See for reference purposes, the same definition and analysis in other western states. 2 Beck, Waters and Water Rights, § 1201 at 85-90 (1991).
2 In Rigney, the court was analyzing the rights to the use of water under the riparian doctrine of water use. Until the 1917 Water Code was passed, the state of Washington recognized the ability to create a water right under both the riparian and the prior appropriation doctrines. Under the riparian doctrine, water rights are created without putting the water to beneficial use, but rather are based on the ownership of land appurtenant to the watercourse. In 1985, the Supreme Court held that pursuant to the 1917 act, the state no longer followed the riparian doctrine, but must administer and regulate the waters pursuant to the prior appropriation doctrine only. In the Matter of Deadman Creek, Department of Ecology v. Abbott, 103 Wn.2d 686, 694 P.2d 1071 (1985).
3 The Desert Land Act, ch. 107, 19 Stat. 377 (1877), severed the water from the public domain. Thereafter, water was to be acquired only under the laws of the state.
4 Only a superior court has the authority in a general adjudication to determine the absolute validity of a vested right. Rettkowski v. Department of Ecology, 122 Wn.2d 219, 858 P.2d 232 (1993).
5 These cases discuss the inherent conflict between elements of the riparian doctrine and the appropriation doctrine, both of which were recognized under the common law as methods of obtaining a water right in this state. A conflict arose because of the element in the riparian doctrine which recognizes the establishment of a water right without the obligation to diligently put the water to use. State v. American Fruit Growers, supra; Brown, supra; Hunter Land Co., supra; In Re Sinlahekin Creek, 162 Wash. 635, 299 P. 649 (1931); Rigney v. Tacoma, supra, 9 Wash. 576 (1894); See also Corker and Roe, Washington's New Water Right Law - Improvements Needed, 44 Wash. L. Rev. 85 (1968).
6 The individual project will dictate what period of time is required to establish diligence. The immediate use of water is not required; common sense applies in determining diligence for putting water to use. Morris, supra at 257; In Re Alpowa Creek, supra. This time period may be extended because of delays caused by matters "incidental to the enterprise." Grant Realty Co. v. Ham, Yearsley & Ryrie, 96 Wash. 616, 624, 165 P. 495 (1917). Personal matters such as lack of financial ability or illness are not excuses for delay in the use of water. Id. Whether the enterprise is for agricultural purpose or for growth of a city, this case-by-case analysis applies. See State v. Crider, 431 P.2d 45 (N.M. 1967).
7 Agency actions which are contrary to the law or beyond the agency's authority are void. Rettkowski v. Ecology, supra; Longview Fibre v. Cowlitz County, 114 Wn.2d 691, 699, 790 P.2d 149 (1990); Concerned Landowners v. King County, 64 Wn. App. 768, 778, 827 P.2d 1017, rev. denied, 119 Wn.2d 1008 (1992).
Appendix
AG Letter
Opinion dated December 11, 1996 (
290kb) - Multiple Group B Systems in Long Plats
Related Resources
MRSC Index – Water rights, water permits