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Upper Puyallup River Watershed Characterization

Appendix "K" WA State Water Law: A Primer

Appendix "K" Washington State Water Law: A Primer

This primer summarizes the major water laws of Washington State and significant case law. It is intended to be a brief summary. Much of the basis for this summary comes from Ecology guidance materials (Ecology, 1998i.) Table ~ lists state laws and rules on various water resource issues. Washington State water law is complex and constantly evolving. In the past ten years, the State has enacted and implemented major new laws addressing water conservation, growth management, water resource planning, and water resource data management. Significant new water resources legislation is under consideration by the state legislature as of this writing. State law is likely to evolve further in the near future in light of conflicts produced by rapid population growth, changes in priorities for water, the difficulty and cost of new water development, and demands to improve the health of streams. ESA listings and proposed listings of salmonids are in part due to loss of habitat, which is sometimes linked to lack of sufficient stream flow. Early Water Law The riparian doctrine of water law allows for the historic reasonable use of water on land adjacent to a water source. More specifically, riparian rights are: "The rights of the owners of land on the banks of watercourses relating to the water, its use, ownership of soil under the stream, accretions, etc. The term is generally defined as the right which every person through whose land a natural watercourse runs has benefit to the stream as it passes through his land for all useful purposes to which it may be applied" (Black's Law Dictionary, H.C. Black, M.A., 1979). The riparian doctrine developed over time from the common use or common law that evolved throughout historical legal understanding. Riparian doctrine provided a right to use water in the future dependent upon the water source being adjacent to or within the owner's property. The priority of water rights established under the riparian doctrine was based on the date action was first taken to separate the land from federal ownership. The amount of water to which the riparian owner was entitled was his reasonable need within the limits of the total available; thus the use of water was co-equal.

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Even after the colonization of America, and subsequent United States independence, the riparian water laws continued to work well throughout the eastern portion of the country, where water was plentiful. Settlers who moved west however discovered that the old water laws didn't work so well in the drier climates west of the Mississippi River. The early westerners used water in new ways and on land that was distant from the water source. Western water use didn't always fit under the earlier riparian doctrine water laws. Water Resources Laws and Rules Revised Code of Washington (RCW) and Washington Administration Code (WAC) Administration and regulation of surface and ground water codes

Chapter 90.03 RCW Chapter 90.44 RCW

Appropriation Procedures

Chapter 508.12 WAC

Chapter 90.03 RCW

Beneficial Use

Chapter 508.12 WAC

Chapter 90.14 RCW Chapter 90.54 RCW Chapter 90.44 RCW

Construction of Water Wells and Licensing of Drillers

Chapter 18.104 RCW

Chapter 173-160 WAC Chapter 173-162 WAC

Fundamentals of Water Resources

Chapter 90.54.020 RCW

Minimum Water Flows and Levels

Chapter 90.22 RCW Chapter 90.54 RCW

Unauthorized Use of Water

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Chapter 90.03.010 RCW Chapter 90.44.110 RCW

Water Right Relinquishment

Chapter 90.14.130 RCW

Water Rights Transfer or Change

Chapter 90.03.380 RCW Chapter 90.44.100 RCW Chapter 90.44.105 RCW

These early western settlers discovered that it was necessary to bring the water to where they needed it, rather than bring their needs to the water. This new practice of removing water from the stream and conveying it to remote new places of use became recognized in law as the appropriation doctrine. An appropriation doctrine water right is based on actual beneficial use of water, rather than date that land was separated from federal ownership. It was through appropriation that the legal concept of water right priority emerged. In times of shortage, senior right holders have their water needs satisfied first, rather than all users sharing water proportionally. Thus the concept of "first in time, first in right" became a new component of water law in the western United States. Washington State is one of only a few states with the "dual system" of water law: riparian and appropriation. This fragmented water right process has many problems. There is no provision to require follow-up to determine whether any or all of the water claimed through a notice of an appropriation doctrine diversion actually was put to beneficial use. In some areas, several property owners would claim the entire flow of a stream numerous times. Conflicts between water users resulted in individual lawsuits to settle disputes. Most early court cases dealing with disputes over water rights failed to identify all water users on a problem stream, unless they were named as plaintiff(s) or defendant(s). The courts also failed to sort out the legitimate rights of other water users or to comprehensively settle rights to waters of an entire water source. Clearly, the water rights process had become unreliable.

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Appendix "K" WA State Water Law: A Primer

Water Rights In Washington state, water rights are a form of property right, and are allocated and regulated under the prior appropriation hierarchy of "first in time, is first in right." But who is first in time? The Department of Ecology issues water rights as permits, and then certificates once the right is perfected. These rights are well defined: they represent specific quantities of water and have priority dates based on the date of filing of the application. There are, however, a number of other rights that exist in the law but have not been fully defined. Many of these rights pre-date state-issued water rights, and may operate as a senior "call" on existing water uses. These have been described as "inchoate" water rights. Inchoate rights are property rights that have not been quantified or fully vested. When Ecology issues a new water right, it must determine that water is available, and that the proposed use will not impair senior rights and the public interest. The seven forms of inchoate water rights described below (R. Paschal, 1995) are preexisting rights that should be taken into account in this analysis. Public Interest Rights The "public interest" is manifested in the Water Resources Act of 1971, RCW 90.54, under which the Department of Ecology established its Instream Resource Protection Program (Chapter 173-500 WAC). These regulations establish minimum flows for about 20 watersheds around the state, and closed some streams, rivers, and aquifers to new appropriations. The priority date for minimum flows is the date they are adopted as regulations. Subsequently issued water permits cannot adversely impact these flows, and are therefore "interruptible," that is, contain conditions that require water permittees to stop their water use when flows fall below the regulatory minimums. For example, irrigation water permits issued in regulated watersheds contain the following language: "water available under this permit will not provide a firm supply throughout each irrigation season." During low flow years, Ecology may issue regulatory orders to maintain the minimum flows. Since 1986 the state has not established minimum flows for any additional streams and rivers. Water Rights Claims Pre-1917 use of surface water and pre-1945 use of groundwater does not require a permit, but must have been registered with the state pursuant to the Water rights Registration Act, RCW 90.14. Claims can be based on one

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of two doctrines: prior appropriation or riparian rights. Off-stream riparian water use must have been put to use by 1932. The state did not require registration of claims for in-stream riparian uses of non-navigable streams (see below). Approximately 160,000 claims were registered with the state, claiming rights to use quantities of water far in excess of what is available. Given that it is physically impossible for all claims to be used, how does Ecology determine which claims are valid and which are not? A claimant's water use must have been continuous since the date of the claim. The validity of claims is determined in a general stream adjudication, as prescribed in RCW 90.03.110 through 90.03.245 and 90.44.220. Ecology may make a "tentative determination" of the validity of claims when it processes new water right applications, in order to determine whether water is available and whether the proposed use will impair senior water rights (see discussion of Rettkowski v. Ecology below). As a practical matter, Ecology has no method or system for making a tentative determination of the validity of claims. Tribal "Winters" Rights

Indian tribes have rights to water sufficient to fulfill the purposes of their reservations. This often includes water rights for agriculture, see Winters v. United States. 207 U.S. 564 (1908), and in-stream flows, see Colville Confederated Tribes v. Walton, 752 F.2d 397 (9th Cir. 1985). The priority date for tribal Winters rights is the date of establishment of the reservation. The on-reservation rights of many Indian tribes remain unquantified.

On-reservation Water Rights

The treaty tribes of Washington possess rights to harvest up to half of the anadromous fisheries of the state. See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979). The question of whether the right to fish includes a right to protect fish habitat

Stevens Treaty Water Rights (off reservation)

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was left open in the original treaty litigation. See United States v. Washington, 759 F.2d 1353 (9th Cir. 1985). Subsequent cases have confirmed Indian tribal rights to instream flow in off-reservation surface waters for the protection of fisheries. See Kittitas Reclaimation District v. Sunnyside Valley Irrigation District, 752 F.2d 1456 (9th Cir. 1985); Joint Board of Control of the flathead Irrigation District v. United States, 832 F.2d 1127 (9th Cir.1987); Yakima Reservation Irrigation District v. Ecology, 121 Wn.2d 257 (1993). These off-reservation water rights carry a priority date of "time immemorial," and therefore pre-date all other water usage. Few of the Stevens Treaty water rights to instream flow have been quantified for the treaty tribes of Washington State. Federal Reserved Rights Like Indian tribes, the United States government has a right to water for its reservations and property, including military bases and national parks and forests. See Arizona v. California, 373 U.S. 546 (1963). These rights are for quantities of water adequate to fulfill the primary purposes of the reservation. The priority date is the date of establishment of the reservation. Federal Statutes

The federal government must act to "conserve" endangered species and no person may conduct activities that harm endangered species, including degradation of critical habitat. The Endangered Species Act has been interpreted to limit state-issued water rights that degrade habitat for endangered or threatened species of fish and birds. See United States v. Glen-Colusa Irrigation District, 788 F. Supp. 1126 (E.D. Cal. 1992); Riverside Irrigation District v. Andrews, 758 F.2d 508 (10th Cir. 1985). Concerned about impacts to endangered and potentially endangered salmon fisheries, Washington State has imposed moratoria on the issuance of new water rights in the Columbia and Snake River basins. See WAC 173-563-015 and WAC 173-564-040 (amended 1/3/95).

Endangered Species Act

Clean Water Act

Water quality and water quantity are inextricably linked. In 1994, the United States Supreme Court ruled that instream flows are a legally

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cognizable component of water quality standards required by the Clean Water Act and promulgated under the state Water Pollution Control Act, RCW 90.48. See PUD No. 1 of Jefferson County v. Ecology, 114 S.CT. 1900 (1994). Surface waters with inadequate instream flow to meet their designated uses (for example, fish habitat) may be listed as impaired on the state "303(d)" list. Once on the 303(d) list, the water body is subject to the TMDL process. Public Trust Rights The public trust doctrine is a common law doctrine that protects the public right to use navigable waters and underlying beds, including tidelands, shorelands, and navigable rivers. It typically protects public interests in navigation, commerce, fisheries, environmental quality, aesthetics, and recreational use of waters. See Orion Corp. v. State of Washington, 109 Wn.2d 621 (1987). The public trust concept became attached to navigable waters at statehood, and may operate to limit development or use of public trust resources, even when they are privately owned. The public trust doctrine is recognized as a legal restriction on water rights in other states, where it has been used to protect instream flows and aquatic resources. See National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (Calif. 1983); Sleeker-Priest Basin Ass'n v. State of Idaho, 899 P.2d 949 9Idaho 1995). Although recognized in Washington law, the public trust has not been specifically applied in the water rights context. Instream Riparian Rights Riparian rights are rights to use water that flows across or adjacent to one's property. The doctrine of riparian rights was the original water law of Washington State. Riparian rights to navigable waters were eliminated at the time of statehood. However, riparian rights to non-navigable waters were preserved in the water code of 1917, which converted the state to a permit system based on prior appropriation for all post-1917 water uses. See RCW 90.03.010. Off-stream, consumptive riparian rights must have been put to use by 1932, used continuously since that time, and registered with the state by June 30,

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1998. The state did not require riparian water users to register claims for instream water use. The state recognizes riparian rights to the surface water of non-navigable lakes. See Bach v. Sarich, 72 Wn.2d 575 (1968). Washington State courts have not yet addressed whether and how riparian rights to instream uses of non-navigable streams may be asserted. The existence and priority of an instream riparian right was the underlying issue in the "Sinking Creek" case, but was not decided by the courts. Case Law Affecting Water Rights Several legal and policy issues have also affected water resource management in Washington. Some of these court cases are described below: · The State Supreme Court ruled in Rettkowski v. Department of Ecology (1993, commonly known as Sinking Creek) that Ecology may not attempt to resolve disputes among conflicting water uses if one or more of them is based on an unadjudicated vested claim to a water right. · The State Supreme Court in Grimes v. Department of Ecology (1993) set down important case law regarding the obligations of water users to maintain efficient water delivery and use systems that are not wasteful. The opinion also provides important criteria relating to beneficial use. · The State Supreme Court in PUD No. 1 of Jefferson County v. Department of Ecology (1993, commonly known as the Elkhorn case) ruled that Ecology could use instream flow conditions on a permit that provide a high level of protection for instream values. This case was subsequently appealed to the United States Supreme Court on other issues and resulted in a landmark opinion regarding the relationship of water quantity and quality. See further discussion under Inchoate water rights. · The State Court of Appeals ruled in Hubbard v. Department of Ecology (1994) that the connection between ground water and surface water (referred to as hydraulic continuity) may exist even when the point of withdrawal of the ground water is several miles removed from the affected stream. It upheld Ecology's conditioning of a ground water right with instream flows in the Okanogan River, based on continuity between the aquifer and river, even if the effect of pumping on the flow of the river would be small and delayed. The decision also affirmed that where surface and ground water is connected, minimum flows established by rule are

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·

·

·

treated as appropriations and should be protected from impairment by any subsequent ground water appropriation. The State Supreme Court ruled in Hillis v. Department of Ecology (1997) that Ecology must involve the public when making broad policy decisions on setting priorities for water rights permit decisions. That opportunity is provided through Ecology's rule-making process. The court refused to invalidate individual water right decisions Ecology made on the basis of an existing watershed assessment process. The court also found that Ecology may conduct watershed assessments, but may not make the completion of an assessment a requirement or prerequisite to making decisions on applications without first adopting rules. In Okanogan Wilderness League v. Town of Twisp and Department of Ecology (1997) the State Supreme Court ruled that Ecology's decision granting a change in the point of diversion for the town of Twisp's surface water right was in error because the water right had been abandoned and was therefore no longer valid. Municipal water rights, while not subject to relinquishment, remain subject to loss through abandonment. The State Supreme Court also held that only the quantity of water that has been put to actual beneficial use is valid for change under an existing water right. In reviewing change and transfer applications, Ecology must first determine the quantity that has been put to historical beneficial use under the existing water right, and then determine that the right was never relinquished or abandoned. The State Supreme Court ruled in Department of Ecology v. George Theodoratus (1998) that Ecology is authorized to place new conditions on extensions for water right permits and to issue certificates for water rights only when and to the extent that the water is put to beneficial use.

Washington Water Code of 1917 The Washington State Water Code of 1917 provided for centralized water right administration by the state. It required individuals to file application for a permit to establish appropriative surface water rights subject to any existing rights. It directed that public notice be made of all applications with a provision for protest if someone contended that an earlier right might be impaired or harmed by a new applicant's water use. Further, the water code required the state to answer four tests in making a decision on new water rights: the use must be beneficial (not wasteful); water must be available; there must be no impairment to existing rights; and the use must not be detrimental to the public interest. The Water Code also

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established procedures for adjudicating all existing water rights. A general water right adjudication is a legal process conducted through the State Superior Court that determines the validity and extent of existing water rights in a given area. The 1917 Water Code did not affect existing rights, but made appropriation through a state permit system the exclusive way to establish new rights. The state initially considered that riparian water rights not perfected through actual use were terminated by the passage of the Water Code of 1917. However, a later State Supreme Court case recognized a 15-year period after 1917 for riparian rights to be put to beneficial use. For a riparian water right to be recognized by Ecology or confirmed in an adjudication, steps must have been taken to remove the riparian land from federal ownership prior to June 6, 1917, and water must have been put to beneficial use prior to December 31, 1932. Much of Washington State's current water law, practices, and uses are based upon this 1917 law. The law written at nearly the turn of the century still is the primary governance of water use in our state, even now as we enter the Year 2000. The 1945 Ground Water Code By 1945, many people in the state were using wells to access ground water. The Legislature then enacted the Ground Water Code, establishing the same permitting process used for surface water. The Ground Water Code provided a three-year opportunity for anyone claiming an existing ground water right to declare that they had already put the ground water to beneficial use. The state then reviewed the declarations that were submitted and issued certificates of ground water right to those who qualified. The Ground Water Code is the basis for Washington's current water law, practices and uses of ground water. Except for exempt ground water withdrawals, today water right holders must obtain a state-issued permit before using water for a beneficial purpose. This requirement was enacted by the Legislature through Washington's Surface Water Code (1917) and Ground Water Code (1945). Exempt Ground Water Withdrawals The Ground Water Code does allow an exemption to the permit requirement if someone uses a total of 5,000 gallons or less of ground water from a well each day for any of the following combinations:

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· · · ·

Stock watering purposes; Single or group domestic purposes; Industrial purposes; or Watering a lawn or noncommercial garden that is a half-acre or less in size.

The "small withdrawal" exemptions have two evident and interrelated purposes: (1) to save the appropriator of a very small withdrawal the trouble and expense of applying for a permit where the effect of the withdrawal would be very slight, and (2) to save the state the trouble and expense of processing applications for small withdrawals with little impact on the total water available. In other words, given that the general purpose of the water code was to provide a complete system for the regulation and distribution of water as well as to provide an inexpensive and ready manner of settling all disputes, the Legislature recognized that very small withdrawals were unlikely to have a significant impact on the water system or to affect the outcome of disputes, and thus could be safely exempted from the permit requirement. For domestic water uses, the limit of the exemption was set at five thousand gallons per day. It should be noted that exempt withdrawals could result in vested water rights to the same extent as nonexempt withdrawals, with the important exception that the former does not require a permit. The Departments of Ecology and Health sought and received a formal legal opinion regarding exempt ground water withdrawals from the Washington State Office of the Attorney General (Olympia, WA 98504-7890 AGO 1997 No. 6). The agencies were concerned that some of the increased use of non-permitted wells could be contrary to legislative intent and could result in a large number of unauthorized uses of water that could harm waters in streams for fish and aquatic life. Ecology was also concerned that misuse of the exemption could harm senior, existing water rights and ground water resources. The opinion responded to a hypothetical example wherein a single property owner contemplates withdrawing ground water beyond the statutory maximum of 5,000 gallons per day to supply a single housing development. The opinion concluded that the Legislature did not intend, in such a case, to allow the property owner to escape the permitting requirement merely by slicing the water needs of the development into small pieces with each piece requiring only an "exempt"

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withdrawal. If the property owner drilled a single large well to supply the whole development, the withdrawal would clearly not be exempt. Applying the permit requirement should not turn on an artificial choice of drilling several holes in the ground rather than one, where the withdrawal is for a single purpose. This view is consistent with the rule of statutory construction by which exemptions to a statute are narrowly construed, to give maximum effect to the policy underlying the general rule. In this case, a broad reading of the "exemption" language in RCW 90.44.050 would significantly increase the size of the "exempt" sector of appropriated ground water and would encourage the drilling of multiple wells, without any hydrological basis for the practice, precisely to escape the permit application requirement. This would undercut the unity and integrity of the state's water system and could increase the complexity of any litigation or other dispute about the water in question. The Minimum Water Flows and Levels Act of 1967 This Act provides a systematic approach to instream flow protection. Under this law, Ecology may, upon request of the Washington Department of Fish and Wildlife or of its own volition, establish minimum flows by administrative rule to protect fish, wildlife, water quality, and other instream values. The Water Right Claims Registration Act of 1967 By the 1960's, the legislature realized that records for water rights established before the 1917 surface water code and the 1945 ground water code (called vested rights) were incomplete and scattered. As a result, the state had an inadequate understanding of the amount of water being used. To take care of this problem, the Act directed the then Water Resources Department to record the amount and location of these pre-code vested water rights by authorizing the state to accept and register water right claims. A water right claim is a statement of claim to water use not already covered by a water right permit or certificate that began before the state Water Codes were adopted. A water right claim does not establish a water right, but only provides documentation of one if it legally exists. Despite these attempts to record claims to vested water rights, an uncertainty still remains around those water rights which may have been established before the Legislature adopted the state's water

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codes. Ultimately, the validity of claimed water rights can only be determined through a Washington State Superior Court proceeding called a general water right adjudication. The 1967 law also provides that water must be used under a water right or, after a period of time, the user faces losing their water right through relinquishment back to the state. The law does provide for certain circumstances under which a water right would not be subject to a relinquishment. These sufficient causes include active military service, drought conditions, court proceedings, or water use for municipal water supply purposes. The initial statewide opening for filing water right claims ended June 30, 1974. The legislature has opened the Water Rights Claims Registry three times since then. The most recent claim registration occurred from September 1, 1997 until June 30, 1998. When Governor Locke signed the 1997 law re-opening the claims registry, he did so with the hope that it would be the final opening and put an end to the confusion about water rights. The Water Resources Act of 1971 The legislature passed the Water Resources Act of 1971 to protect and manage the state's water resources for "the greater benefit of the people." This act became necessary because of the increasing conflict in water use and applications for larger amounts of water. Earlier water laws were not equipped to handle these new problems. This act mandates water resources data collection, and development and management of comprehensive basin plans. This is the present instream flow law used to protect fish and other environmental values by setting minimum instream flow levels basin-wide before issuing new water rights. Instream flows adopted as rules are considered a water right and have as a priority date, the date of adoption of the plan as a rule. Growth Management Acts of 1990 and 1991 Growth management legislation included provisions providing a clearer link between the development of land and water availability. Under these laws, an applicant for a building permit for a structure that will require drinking water must provide evidence of an adequate water supply for the intended use of the building.

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Watershed Management Act of 1998 (ESHB 2514) This Act provides a framework to collaboratively solve water issues. It is designed to allow local citizens and local governments to join together with state agencies and tribes to form planning units to develop watershed management plans for specific geographic areas consisting of one or more WRIAs. These planning units shall assess water supply and use, and recommend strategies for satisfying minimum instream flows and water supply needs and in collaboration with Ecology, set instream flows. The planning units may also develop strategies for improving water quality and protecting or enhancing fish habitat, The legislature also supplied funding for grants to support these local planning efforts.

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