Overview of Water Rights in Washington
A water right is basically a legal right to use a certain amount of public water for a beneficial purpose. Water rights issues have come into the forefront as the inter-relationship among water quantity and use, water quality, land use planning and development regulations, and water habitat for fish and wildlife has gained recognition.
The state Department of Ecology is responsible for managing the state's water resources and administers the permit systems for water rights for surface and ground water. A wealth of information about water rights administration and the department's water resources program is available on the Department of Ecology Water Rights page.
The law of water rights in Washington is complex. The law is based on "common law" (law based on custom and tradition and court decisions) as well as on state statutes enacted by the legislature. Washington has an extensive body of case law on water rights dating back to the early 1900s and detailed administrative regulations adopted by the Department of Ecology. Several excellent articles summarize water law basics in Washington.
An additional and uncertain factor necessary to understanding water rights is Indian tribal water rights issues. As a result of federal law and the treaty rights of several Pacific Northwest Indian tribes, the tribes are major stakeholders in water resource issues. Tribal treaty rights include fishing and hunting rights as well as rights to the protection of the water habitat necessary to realize those treaty rights.
Major water rights issues for local governments are municipal water rights and adequate water supply requirements for private development permits. The Growth Management Act requires that cities and counties address the quality and quantity of water in preparing planning goals and plans, designating critical areas, and issuing development permits. Court decisions over the past few years relating to municipal and private water rights, including the decision of Department of Ecology v. Theodoratus on July 2, 1998, have raised concerns about the ability of counties and cities to provide municipal water service and accomplish effective land use planning. In 2002, however, the state supreme court in Department of Ecology v. Campbell & Gwinn clarified the issue of whether the statutory exemption from groundwater permit requirements for withdrawal of 5,000 gallons or less per day for domestic uses applies to a subdivision with multiple wells that will individually serve each lot in the development. The court held that the exemption does not apply to multiple domestic wells that collectively would withdraw more than 5,000 gpd.
Water rights issues have significant implications for current legislative initiatives for water resource planning and watershed management. Water rights issues are also important to state and local governments in responding to the pending listings of several fish species as threatened or endangered species. More information on these issues can be found on this Web site under Endangered Species Act salmon issues.
The following resources provide more general discussions of water rights.
- High and Dry in Washington: The Battle for Water Rights, Bob Wubbena, Municipal Research News, March 1996 - This article provides a brief history of water rights issues, explains why and how the issues affect Washington cities and towns, and describes steps communities can take to plan for future water supply needs and to obtain and reserve water rights.
- Washington State Department of Ecology Water Resources Program - Describes the Washington Department of Ecology's water resources program and provides a brief overview of the history, common law doctrines, and major state statutes defining water rights, as well as other information related to water rights and current water rights issues.
- Water Rights in Washington: Questions & Answers, Department of Ecology Publication # 96-1804-S& WR, September 1996, updated 2008.
- Turning Off the Tap, Rachael Paschal, Executive Director, Center for Environmental Law and Policy, Seattle - Article relates to the administration of water rights applications and water politics in Washington at the time of writing, 1996.
- Association of Washington Cities 2009 Policy on Environment - Provides the statewide city organization's legislative policy statement on environment and water rights issues and highlights concerns of cities and towns.
- Watershed Assessments, Plans, and Water Right Decisions, Department of Ecology Publication # 00-06-003, May 2000, by Melissa Gildersleeve.
Related Resources
MRSC Index – Water rights, water permits