Water will always be an important natural resource, central to life in Washington. There are many public and private activities that rely on or benefit from water, including recreation, power, agriculture, industry, fishing and navigation.
The Legislature declared Washington's water policy in the Water Code:
It is the policy of the state to promote the use of the pubic waters in a fashion which provides for obtaining maximum net benefits arising from both diversionary uses of the state's public waters and the retention of waters within streams and lakes in sufficient quantity and quality to protect instream and natural values and rights. Consistent with this policy, the state supports economically feasible and environmentally sound development of physical facilities through the concerted efforts of the state with the United States, public corporations, Indian tribes, or other public or private entities. Further, based on the tenet of water law which precludes wasteful practices in the exercise of rights to the use of waters, the department of ecology shall reduce these practices to the maximum extent practicable, taking into account sound principles of water management, the benefits and costs of improved water use efficiency, and the most effective use of public and private funds, and, when appropriate, to work to that end in concert with the agencies of the United States and other public and private entities.1
This broad statement of policy also is read against Washington's Constitution regarding water use. Article XXI, Section 1, provides that the use of waters for irrigation, mining and manufacturing purposes is a "public use." Further, Washington's Constitution allows parties to establish water rights away from streams and to condemn private rights-of-way for conveyance systems to transport water to non-adjacent properties.2
This constitutional right has been codified in RCW ¤ 90.03.040:
The beneficial use of water is hereby declared to be a public use, and any person may exercise the right of eminent domain to acquire any property or rights now or hereafter existing when found necessary for the storage of water for, or the application of water to, any beneficial use ... including the right and power to condemn an inferior use of water for a superior use. In condemnation proceedings the court shall determine what use will be for the greatest public benefit, and that use shall be deemed a superior one 3
A beneficial use is a use for any public benefit, including, "uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, and thermal power production purposes, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state."4 A superior use is a "better" use, or a use versus non-use of water.5
Water Rights History
Between 1853 and 1889, water rights operated under the "community custom" doctrine.6 This doctrine provided that perfection of a water right could occur in accordance with community custom, requiring "(1) an intent to appropriate, (2) implementation of that intent by an actual diversion of public waters, and (3) an application of the diverted water to a beneficial use within a reasonable time based upon the concept of due (or reasonable) diligence."7 This doctrine still may be used in modern cases where claims to the water arose prior to statehood.8
Water rights between 1889 and 1917 were governed by two common law doctrines: the riparian rights doctrine and the prior appropriation doctrine.
The riparian rights doctrine provides that owners of land adjacent to streams have, as an incident of property ownership, the right to capture the flow of the adjoining stream so long as their diversions are a reasonable use of the water and are reasonable as to the rights of the downstream landowners.9 This reasonableness requirement does not, however, impact the riparian owner's right to use all water necessary for his "natural" or "domestic" needs - of home and farm.10 The riparian rights doctrine is restricted to adjacent lands and prohibits the diversion of large quantities of the flow by any single landowner.11
A companion to the riparian rights doctrine, the prior appropriation doctrine, "provides that a right to water can be established only by putting water to beneficial use and that the first such use in time is the first such use in right."12
Surface Water Code of 1917
In 1917, the Washington Legislature passed the Surface Water Code ("Water Code") which related to all areas of water regulation and water management.13 The Water Code established the present system of appropriation under a permit system administered by the State. The Water Code complemented, but did not supersede, common law, and made all waters of the state "public" subject only to existing rights under common law.14
The Water Code recognized existing water rights and those water rights obtained through the state permitting process.15 No other method can be used to obtain water rights.
Used and unused water rights can be purchased by an appropriator.16 Additionally, any private individual or public irrigation district may exercise the right of eminent domain to condemn an inferior use for a superior one.17
Groundwater Code of 1945
In 1945, the prior appropriation doctrine was extended to groundwater when the Legislature passed the Regulation of Public Groundwaters Act.18 Groundwaters are:
[A]ll waters that exist beneath the land surface or beneath the bed of any stream, lake or reservoir, or other body of surface water within the boundaries of this state, whatever may be the geological formation or structure in which such water stands or flows, percolates or otherwise moves. There is a recognized distinction between natural ground water and artificially stored ground water.19
The Groundwater Code requires a permit for the withdrawal of any groundwaters, except for designated minimal uses.20 In addition, the Groundwaters Act was amended to authorize the State to establish groundwater management areas to guarantee water quality, quantity and efficient use of water resources in areas with water management problems.21
Water Rights Claims: Registration Act of 1967
In 1967, the Legislature enacted the Water Rights Claims Registration Act,22 which required that all water rights be registered with the State.23 The Act also declared that any water right not used for five consecutive years would revert to the State for appropriation by others.24
Any person who failed to file a claim of water rights was deemed to have conclusively waived and relinquished all right to that claim.25
Water Resources Act of 1971
To "ensure that waters of the state are protected and fully utilized for the greatest benefit to people of the state,"26 the Legislature enacted the Water Resources Act of 1971.27 The Act establishes the competing beneficial uses of state waters.28
The Act mandates that allocation of water between competing uses be based on securing maximum net benefits for the people of the state.29 Maximum net benefits are determined by reducing the total benefits by costs, including lost opportunities.30
Other "fundamentals" governing the use and management of waters include protection of the quality of the natural environment, provision of adequate safe domestic water supplies, conservation of water resources by all users and promotion of water management programs.31
Matthew King is a Seattle attorney whose practice emphasizes water rights, land use, and environmental counsel and litigation. He can be reached at 206-223-0868 or via e-mail at matthewking@abanet.org. This material was excerpted from Washington Practice, Environmental Law and Practice (Second Edition) which is expected to be published this spring.
1 RCW ¤ 90.03.005 (2006). See Matter of Deadman Creek Drainage Basin in Spokane County, 103 Wn.2d 686, 694 P.2d 1071 (1985).
2 Washington Constitution, Article I, section 16.
3 See Prescott Irrigation Co. v. Flathers, 20 Wash. 454, 55 P. 635 (1899).
4 RCW ¤ 90.54.020(1).
5 Neubert v. Yakima-Tieton Irrigation Dist., 117 Wn.2d 232, 814 P.2d 199 (1991); Mack v. Eldorado Water District, 56 Wn.2d 584, 354 P.2d 917 (1960).
6 Ellis v. Pomeroy Improvement Co., 1 Wash. 572, 577, 21 P. 27 (1889).
7 Roe & Anderson, Washington Practice: Methods of Practice ¤ 91.8, citing Ellis; Sander v. Bull, 76 Wash. 1, 4, 135 P. 489, 491 (1913); In re Water Rights in Alpowa Creek, 129 Wash. 9, 13, 224 P. 29 (1924); In re Water Rights in Crab Creek and Moses Lake, 134 Wash. 7, 14, 235 P. 37 (1925); Thorp v. McBride, 75 Wash. 466, 469, 135 P. 228 (1913); In re Waters of Doan Creek, 125 Wash. 14, 25, 215 P. 343 (1923). See also Still v. Palouse Irrigation & Power Co., 64 Wash. 606, 612, 117 P. 466 (1911).
8 See R.D. Merrill Co. v. State Pollution Control Hearings Board, 137 Wn.2d 118, 969 P.2d 458 (1999) (arguing water rights were perfected pre-statehood).
9 Geddis v. Parrish, 1 Wash. 587, 21 P. 314 (1889); Crook v. Hewitt, 4 Wash. 749, 31 P. 28 (1892); Wallace v. Weitman, 52 Wn.2d 585, 328 P.2d 157 (1958).
10 Hunter Land Co. v. Laugenour, 140 Wash. 558, 574, 250 P.41 (1926). See also Nielson v. Sponer, 46 Wash. 14, 89 P. 155 (1907); Nesalhous v. Walker, 45 Wash. 621, 88 P. 1032 (1907) (riparian rights are broad under Washington law, and include the right to irrigate); Griffith v. Holman, 23 Wash. 347, 63 P. 239 (1900) (the right to fish, boat and claim title to the beds on non-navigable lakes and streams); Crook v. Hewitt, 4 Wash. 749 (the right to prevent erosion of the banks).
11 Crook v. Hewitt, 4 Wash. 749.
12 Hallauer v. Spectrum Properties, Inc., 143 Wn.2d 126, 134, 18 P.3d 540 (2001), citing Charles B. Roe & Peter R. Anderson, Water Law, in 1C Kelly Kunsch, Washington Practice: Methods of Practice ¤ 91.4 (4th ed.1997).
13 1917 Wash. Laws, Ch. 117, codified primarily in Ch. 90.03 RCW.
14 RCW ¤ 90.03.010.
15 Id. See Ecology v. Abbott, 103 Wn.2d 686, 694 P.2d 1071 (1985).
16 See, e.g., United States v. Ahtanum Irrigation Dist., 330 F.2d 897 (9th Cir. 1964), cert. denied, 381 U.S. 924, 85 S. Ct. 1558, 14 L.Ed.2d 683 (1965) (where the Court held that a user may sell water rights to another).
17 RCW ¤ 90.03.040. See State ex rel. Andersen v. Superior Court, 119 Wash. 406, 205 P. 1051 (1922) (holding that domestic water use may be public and beneficial use within section); White v. Stout, 72 Wash. 62, 129 P. 917 (1913) (a private owner may condemn right of way for irrigation ditch); State ex rel. Kettle Falls Power & Irrigation Co. v. Superior Court, 46 Wash. 500, 90 P. 650 (1907) (holding that the rights of a riparian water owner were subject to condemnation for irrigation purposes).
18 Ch. 90.44, RCW, commonly referred to as the "Groundwater Code."
19 RCW ¤ 90.44.035(3).
20 RCW ¤ 90.44.050. But see State v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 43 P.3d 4 (2002) (where the court held that the exemption provisions cannot be used as a device to circumvent statutory review of permit applications). See also Attorney General Opinion No. 6 (1997) (discussion of exemptions).
21 RCW ¤ 90.44.400, et seq.
22 Ch. 90.14, RCW.
23 RCW ¤ 90.14.041.
24 RCW ¤¤ 90.14.160-.180.
25 RCW ¤ 90.14.071. See Matter of Chumstick Drainage Basin in Chelan Cty., 103 Wn.2d 698, 694 P.2d 1065 (1985) (where the court held that the failure-to-file-a-claim statute was not a taking requiring compensation).
26 RCW ¤ 90.54.010(2).
27 Ch. 90.54, RCW.
28 RCW ¤ 90.54.020(1).
29 RCW ¤ 90.54.020(2).
30 Id.
31 RCW ¤ 90.54.020.
