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Subjects › Environment › Water Rights › Selected Court Decisions Regarding Water Rights
Updated 12/2011

Selected Court Decisions Regarding Water Rights

Note: This is not intended to be a comprehensive list of important or recent decisions on water rights. For additional citations to water resource related areas, see DOE Water Resource Related Case Law.

  • Five Corners Family Farmers v. State, ___ Wn.2d ___ (2011).  RCW 90.44.050 requires a permit for groundwater withdrawals and also provides exemptions from that requirement for certain uses, one of which is for stock-watering purposes. The court held that withdrawals of groundwater for stock-watering purposes under this exemption are not limited to any particular quantity by RCW 90.44.050.
  • Lummi Indian Nation v. State, 170 Wn.2d 247 (2010).  The state supreme court rejected a consitituional challenge to the 2003 amendments to municipal water law (SESSHB 1338), which, among other things, explicitly defined certain nongovernmental water suppliers as municipal and made that definition retroactive. The court held that these amendments did not violate the separation of powers doctrine or facially violate due process.
  • Pacific Land Partners, LLC v. Dep't of Ecology, 150 Wn. App. 740, review denied, 167 Wn.2d 1007 (2009). A property owner challenged a Pollution Control Hearings Board decision upholding an administrative order that water rights on the property had been relinquished due to nonuse for a beneficial purpose. The board found that the property owner did not beneficially use his water right within five years of his acquisition of the right and that the property owner did not prove any statutory exceptions to nonuse. The court affirmed the board's decision.
  • City of Union Gap v. Dept. of Ecology, 148 Wn. App. 519 (2008).  The owner of a water right relinquishes that right to the state if the water right is not used beneficially for five years. But the owner does not relinquish that right, despite nonuse, if it is claimed for some "determined future development" or for "municipal water supply purposes." Here, a developer bought water rights intending to sell them to a city. The court concluded that the sale did not take place within the required five-year period before the developer relinquished the water rights. Nor did the developer satisfy the requirements of either the "determined future development" or the "municipal water supply purposes" exceptions to the general rule of relinquishment after five years of nonuse of the water rights.
  • City of West Richland v. Dep’t of Ecology, 124 Wn. App. 683 (2004). The city and a water conservancy board challenged a Pollution Control Hearings Board decision rejecting a proposed transfer of a property owner's unperfected groundwater rights acquired under the Family Farm Water Act (FFWA), chapter 90.66 RCW, to the municipality for use as a municipal water supply, mainly lawn irrigation. The court held that the FFWA does not allow the proposed change of the property owner's water rights from agricultural use to municipal use.
  • Dept. of Ecology v. Campbell & Gwinn, 146 Wn.2d 1 (2002).  RCW 90.44.050, which provides an exemption from groundwater permit requirements for withdrawal of groundwater for domestic uses of 5,000 gallons or less per day, applies regardless of whether the water would be used for single or group domestic uses.  As such, the exemption did not apply to permit 5,000 gallons per day to be withdrawn for domestic uses on each lot in developer's 20-lot development.   
  • Postema v. Pollution Control Hearings Board, 142 Wn.2d 68 (2000).  Hydraulic continuity between groundwater and a surface water source with unmet minimum flows or that is closed to further appropriation is not, in and of itself, a basis on which to deny a groundwater appropriation permit.
  • R.D. Merrill Company v. Pollution Control Hearings Board, 137 Wn.2d 118 (1999). Under RCW 90.44.100, a groundwater permit may be amended to change the location from which the water is drawn, or to change the manner or place of use of the water, notwithstanding the fact that the water has not actually been applied to a beneficial use.  But, under that statute, a groundwater permit may not be amended to change the purpose for which the water is used. 
  • Dept. of Ecology v. Theodoratus, 135 Wn.2d 582 (1998).  A final certificate of water right, i.e., a vested water right, may not be issued based upon the capacity of a developer's water delivery system, but rather may be obtained only in the amount of water actually put to beneficial use. 
  • Okanogan Wilderness League, Inc. v. Town of Twisp and Dept. of Ecology, 133 Wn.2d 769 (1997).  Under RCW 90.03.380, a change in diversion point (here, from a surface point to wells drawing groundwater) may be granted only to the extent that the water right was put to beneficial use, was not abandoned or otherwise extinguished, and did not cause detriment or injury to other right holders. Under the common law theory of abandonment of water rights, the court held that long periods of nonuse raised a rebuttable presumption of intent to abandon a water right. The presumption that a municipal corporation has intentionally relinquished a water right by not exercising the right for a significant period of time is not rebutted by evidence of the municipality's continuous existence and need for a water supply. 
  • Dept. of Ecology v. Acquavella, 131 Wn.2d 746 (1997), and related cases: Dept. of Ecology v. Yakima Reservation Irrigation District, 121 Wn.2d 257 (1993); Dept. of Ecology v. Acquavella, 100 Wn.2d 651 (1983).  These cases deal with a general adjudication of water rights in the Yakima River Basin that began in 1977. 
  • Hillis v. Dept. of Ecology, 131 Wn.2d 373 (1997).  DOE delayed the decision on a groundwater application by a developer until it conducted a watershed assessment of all applications.  The court found the agency was faced with a large number of permit applications, that the watershed assessment would aid the agency in expediting all permit applications, and that the agency had received funding specifically for a watershed assessment. Therefore, the agency's decision to delay the developer's permit was not a violation of the Administrative Procedure Act (APA). However, its decision to create procedures and priorities were new requirements or qualifications that required the agency to conduct APA rule-making procedures. 
  • Hubbard v. Dept. of Ecology, 86 Wn. App. 119 (1997).  Permits to draw water from wells in the river basin must be conditioned on maintenance of the river's minimum flow rates if DOE decides the local groundwater source is significantly connected with the river.  The Pollution Control Hearings Board did not err in finding there is significant continuity between the applicant's underground water source and the river.
  • Rettkowski v. Department of Ecology, 122 Wn.2d 219 (1993).  The court held that DOE did not possess the statutory power to determine the priorities of water rights in the basin.  The authority to adjudicate and enforce such waters rights isspecifically granted to the superior courts by Ch. 90.03 RCW.  The court also held that the Pollution Control Hearings Board could not adjudicate priorities between water users. The court determined that the only method of ascertaining the priorities of the water rights in the basin was through a "general adjudication."  A general adjudication of water rights pursuant to Ch. 90.03 RCW necessitates that all water claimants be joined in a single action in superior court to determine their rights and priorities to the water. 
  • Neubert v. Yakima-Tieton Irrigation Dist., 117 Wn.2d 232 (1991).  The court determined that a district resolution establishing a water access preference for frost protection water users over general water users improperly interfered with existing water rights.  The landowners' water rights were governed by the doctrine of appropriation under which 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. Therefore, because frost protection was a beneficial use, the right to use water for that purpose was within the landowners' existing water rights.
  • Dept. of Ecology v. Abbott, 103 Wn.2d 686 (1985).  The court held that the 1917 water code established prior appropriation as the dominant water law in Washington. After 1917, new water rights could have only been acquired through compliance with the permit system and existing water rights not put to beneficial use were relinquished. RCW 90.03.005 et seq. The permit system, which had been modified over time to require a permit for all water put to beneficial use, allowed the state to efficiently implement the state water policy. RCW 90.03.250. Also see Legal Challenges to the Municipal Water Law, regarding June 2008 King County Superior Court decision that found key provisions of the municipal water law unconstitutional.