Water Rights in Washington: Historic Roots/Current Issues

1. Water Rights in Washington:Historic Roots/Current Issues Washington Water Law 2008 Conference Law Seminars International CLE – April 10-11, 2008 Jeff B. Kray Marten Law Group PLLC

2. Overview • This presentation will: • Introduce basic tenets of Washington water law • Tie those tenets to their historic roots • Explore current water use issues that other speakers will expand upon later in the conference: • Tribal and federal water rights • Water for municipal growth • Intersections between water resource and water quality laws

3. Context – Past v. Present • The Past • Water use in Washington Territory began to develop in the late 1800s in an agricultural and industrial context. • Water, in relation to population, was fairly abundant, particularly in Western Washington. • Disputes, if any, over water were primarily local. • The Present • Washington water use regulation has developed to address modern environmental and domestic interests in water, as well as historic agricultural and industrial uses. • Population is growing and water demand is increasing, even in Western Washington. • Modern disputes over water are complex and far-reaching.

4. Context - Water “Words” • Words from the Past - Washington’s 1889 Constitution • Irrigation • Mining • Manufacturing • Public Use • Words for the Present - LSI’s 2008 Water Conference Brochure • Instream flows • Climate change and endangered species • Mitigation • Interstate allocation • Tribal water rights • Reclaimed water • Municipal Water Law

5. Basic Concepts - Usufructuary Character of Water Rights • Water law is a subset of property law. • Due to hydrologic cycle, water can be used but not permanently possessed. • Hence, rights to water are use rights, • Protected by the 5th Amendment.

6. Basic Concepts - Water Use: Consumptive v. Non-consumptive • Consumptive uses • Drinking • Cleaning • Irrigation • Industrial (e.g., energy production) • Non-consumptive uses • Power production using water flow • Navigation • Recreation (e.g., fishing and swimming) • Scenic enjoyment • Wildlife habitat

7. Water “Roots” in Washington Territory • Washington Territory created 1853 • No legislation on water rights • Territorial Legislature of Washington’s 1856 Act • Common law recognized in all civil cases • Washington territorial laws begin to recognize elements of prior appropriation • Yakima County 1873 – Declares right to appropriate water in Yakima County streams without regard to riparian statutes. 18 Wash. Terr. Laws, pp. 520-522. • Kittitas County 1885 – Yakima County legislation extended to Kittitas County.

8. Water as a “Public Use” • Washington Constitution approved 1889 • Agriculture and Industry recognized as “public use” of water • “The use of the waters of this state for irrigation, mining, and manufacturing purposes shall be deemed a public use.” Wa. Const. Art. XXI, § 1. • Constitutionally recognized list of “public uses” is not exclusive and does not preclude legislature from declaring other purposes public uses. State ex rel. Anderson v. Superior Court, 119 Wash. 406 (1922).

9. Washington is a Dual System • Washington recognizes both: • Riparian water rights, and • Prior Appropriation water rights. • These rights are primarily governed by state law. • What are Washington’s Key Water Codes? • 1917 Water Code – Centralized state water administration and prior appropriation for all new water rights. • 1945 Ground Water Code – Extended permit system to ground water. • 1967 Minimum Water Flows and Levels Act – Provided systematic approach to instream flow protection. • 1967 Water Claims Registration Act – Established statutory relinquishment.

10. Riparian Rights • Rights to water in a watercourse upon or along one’s land. • A watercourse is, e.g., a stream or a lake. • Nature of Riparian Rights Doctrine: • A rule of capture • Need to avoid tragedy of the commons • Solution: Limit character and extent of use

11. Limits On Riparian Water Use • Limits where water may be used: • Confers a right to use water only on the riparian land itself. • No right of use on nonriparian land even if same owner. • Limits who may use the water: • Confers a nontransferable right to the riparian landowner. • Riparian rights “run with the land” and may not be sold separately. • They are an incident to the land title. • Limits how the water may be used: • May not injure rights of other users. • Use must be reasonable.

12. Prior Appropriation Rights • Water rights based on actual beneficial use, not land ownership. • Senior users are entitled to full satisfaction to the extent of their prior use before junior users may take any water. • Rights may be transferred independent of land. • Criteria: • Water available • For beneficial use • No impairment • No detriment to public interest

13. Development of Prior Appropriation System • Originally, self-help • Posting of notice at site of diversion • Filing of claims in public records • Today, obtaining a certificate from Washington Department of Ecology. Key steps: • Application • Public Notice, Record of Examination (ROE), Appeals • Permit • Beneficial Use • Certification

14. Federal Reserve Rights • Rights to water that has entered the federal public domain … • … reserved for the benefit of • Indian reservations, • Forest preserves, • National parks, and • National monuments. • Source of Federal Reserve Rights • Arise by implication from anticipated needs of the beneficiaries just listed … • … or from the express language of treaties, acts of Congress, or executive orders.

15. Scope and Priority of Federal Reserve Rights • Scope of rights is very uncertain, particularly allowable uses and quantities. • These are rights “reserved” to potentially huge amounts of water that have priority over subsequently created private rights to the same source.

16. Current Issues – Tribal Water Rights • Winters 100th Anniversary • Three examples of modern tribal role: • Litigation (instream flow mitigation) - Squaxin Island v. Miller Land • Negotiation - Lake Roosevelt Agreement • Litigation/Negotiation/Regulation - Lummi Settlement

17. Current Issues – Municipal Growth • 2003 Municipal Water Law • Current Litigation: • Lummi v. Ecology • Cornelius v. Ecology • Water Use Efficiency and Department of Health • GMA (Growth Management Act) • LID (Low Impact Development)

18. Current Issues – Water Quality/Water Resource Intersection • Population Increases/Growth/Climate Change: “new water” and new challenges • Examples: • Lake Roosevelt Agreements and drawdown • Reclaimed water • ASR (Aquifer Storage & Recovery)

19. Conclusions • Water rights in Washington are tied to policies set in the historic roots of Washington water law. • Water law is continuously evolving from those historic roots to address modern water needs and conflicts. • Water law’s evolution slows when it meets the boundary of constitutionally protected property rights in water use. • Question: where does water law’s evolution stop?

20. Thank you. For additional information on today’s topic, please contact: Jeff Kray Tel: (206) 292-2608 Email: jkray@martenlaw.com Web: www.martenlaw.com News: www.martenlaw.com/news