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 1997.
I. INTRODUCTION
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 significantly?)
- How might the obligation to provide water be affected by a general water shortage?
- 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?
And finally,
- 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 lengthy.] )
- 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 rights.
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 already depleted?
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 appeal.] )
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?)
IV. CONCLUSION
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 future.
V. ANOTATED LIST OF CITATIONS AND RESOURCES
A. Citations
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.
B. Resources
Ecology water right permits are administered out of the agency's four regional offices.
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.
Related MRSC Resources
MRSC Index – Water rights, water permits