Do I need a water right? Do I have a water right? Is it valid?

1. Do I need a water right? Do I have a water right? Is it valid? King County Agricultural Water Rights Workshop November 2, 2010

2. Overview • Do I need a water right permit? • Do I have a water right? • Assessing your water right • I can’t find a water right. What are my options?

3. Do I even need a water right? • Certain uses of groundwater are exempted from needing a permit (RCW 90.44.050). There is no permit exemption for surface water. • Stock water (no gpd limit or acre restriction) • Watering a lawn or noncommercial garden that is one half acre or less in size (no gpd limit) • Single or group domestic purposes, not to exceed 5,000 gallons a day • Industrial purposes, including irrigation (5,000 gpd limit but no acre limit)

4. Do I have a water right? Step 1:Search Ecology’s Water Rights Records • Must request from Ecology’s regional offices. At this time, records are not available online. • Helpful information: • Legal description of the property (township, range, section). County parcel number is useful. • Water right record number (if known) • Former property owner(s) names

5. Assessing Your Water Right Validity of Water Rights- things to know: • Ecology cannot guarantee that the elements described on a water right document reflect a valid water right and are available to you. • A water right document may be of no value due to non-use of water, unauthorized use, or lack of perfection. • Validity can only be determined in Superior Court. • Important to do an independent evaluation of historical water use.

6. Researching Historical Use Look at terms of water right record: • A priority date (effective date of the right) • A fixed point of withdrawal (ground water) or diversion (surface water) • Quantities (both instantaneous and annual) • A defined place of use (includes number of acres) • Period of use • Purpose(s) of use • Provisions which govern the use (such as installation of a metering device or fish screen)

7. Assessing your water right:Researching Historical Use • When did water use begin on the property? • Who were the previous owners and how did they use the water? • Have there been 5 or more years of consecutive non-use (all or part of the water right)? If so what was the reason of non-use?

8. Assessing your water right:Relinquishment Relinquishment, RCW 90.14 (aka “Use it or lose it”): • Five or more successive years of non-use triggers relinquishment of a water right unless there is sufficient cause to explain the non-use. • The burden to prove that the right is still in good standing rests on the water right holder.

9. Assessing your water right:Relinquishment Exceptions -Water unavailability -Military Duty -Legal Proceedings -Special Federal or State Programs -Irrigation Specific -Standby or reserve rights -Power Development Rights -Municipal Water Rights - Water Rights of the United States - Water right leases for use on new land - Reclaimed Water Use - Trust Water - Future Determined Development

10. Assessing your water right:Relinquishment Irrigation Specific Reasons for non-use: • Temporarily reduced irrigation due to varying weather conditions (diversion works must exist and be operational) • Use of measured or reliably estimated return flows in place of water from the primary source of supply. - Reduced use of irrigation water due to crop rotation when sound farming practice advises the temporary change of crop type, and the remaining portion of the water right is put to beneficial use.

11. Researching Historical Water Use: • Newspaper clippings (referring to the property or water system) • Photographs (establishing a date and water use) • Maps • Letters (indicating water use or development) • Books (describing the area) • Historical documents (describing the property and/or water system: homestead documents, notices of appropriations, easements for ditches, etc.) • Tax statements • Receipts for materials (showing property and water use) • County and state records, and federal archives • Land use records (documenting crops, irrigation company/districts, diversions) • Deeds (showing chain of ownership for water rights and any civil restrictions that might affect thestatutory provision that “the water goes with the land”) • Affidavits (attesting to personal historic knowledge of the water system and water uses; commonly referred to as “Old Timer Affidavits”) • Direct testimony (providing evidence of personal knowledge of the development of water use in the vicinity)

12. Where to find information • Family scrapbooks or bibles • Attics or basements • Local museums or historical societies • State archives • County auditor’s office (to track property ownership) • County engineer’s office (for maps of early roads that show ditches and streams, etc.) • U. S. Bureau of Reclamation (for water records that may include historic maps and surveys) • Ecology’s regional offices (for copies of existing water right certificates or claims) • Local courthouse (copies of civil suits dealing with the water and/or property use)

13. Changes to water use can affect water right • Changes can be made to the point of withdrawal or diversion, purpose(s) of use, season of use and place of use by obtaining prior approval from the state. • These changes or transfers would be noted in Ecology’s files and reflected in a Report of Examination, although at times there are inevitable delays before these actions are reflected in the state’s records. • Other types of changes may not be documented in Ecology’s files, but could limit the availability of water for your use: • subdividing property, • developing formerly irrigated lands, changing crop types or irrigation methods • switching over to public water supply systems.

14. Assessing Claims • Claim is a statement by a property owner that a pre-code water right may exist. • Ultimately the validity of claimed water rights will be determined through a general water right adjudication, which is conducted by a Superior Court.In an adjudication the court will either deny or confirm a water right, and direct Ecology to issue a Certificate of Adjudicated Water Right for rights confirmed. • For a water rights claim, it’s important to document when the water was first put to use, that the water has been used continuously, and the quantities of water used at the time of perfection.

15. Water Right Change • Water code allows changes to water right certificates, permits and claims. Changes can be permanent or seasonal or temporary. • File application for change with the Department of Ecology. We evaluate whether: • A water right was has been developed and maintained by beneficial use. Ecology will make a tentative determination of the extent and the validity of the water right. • Proposed change cannot impair to existing rights, • Proposed change cannot be detrimental to the public welfare (groundwater only)

16. Water Right Change • If your water right change includes adding irrigation acres, or adding a purpose of use, the proposed use can not increase the annual consumptive quantity. RCW 90.03.380 • Annual Consumptive Quantity (ACQ): means the estimated or actual annual amount of water diverted pursuant to the water right, reduced by the estimated annual amount of' return flows, averaged over the two years of greatest use within the most recent five-year period of continuous beneficial use of the water right.

17. Trust Water Rights Program • Trust Water Right Program provides a way to legally hold water rights for future uses without the water right relinquishing. RCW 90.42 • Water is held for trust to benefit groundwater and instream flows. • Maintains original water right priority date. • Water rights can be permanently or temporarily placed into the Trust program. • May receive some monetary benefit (leased or bought) if meets conservation goals.

18. I don’t have a water right- What are my options?

19. Look for an existing water right • Look for a nearby water right to file a change application to legally use on your property. • Can change permanently or seasonally • You should investigate water use to make sure you are getting a valid water right • Ecology can provide water right records for your search and technical assistance to help you with your investigation. Remember, we cannot definitively tell you if the water right is valid.

20. Groundwater Permit Exemption • Does your use meet the terms of the groundwater permit exemption, RCW 90.44.050? • Can you alter your water use to comply with the exemption?

21. Apply for a new water right • If you can’t get water through the permit exemption or an existing water right, you can apply for a new water right. There are significant challenges: • Backlog of applications. 1,400 applications in our region. • Instream flows or closed basins exist in much of our region. Approving a new water right in areas with closures or instream flows would require the impacts to surface water be fully mitigated. • Interruptible water right- could you get by with a water right that might not be available throughout the irrigation season?

22. More information: Contact me: Jacque Klug, Section Manager Department of Ecology Northwest Regional Office 3190 160th Avenue SE Bellevue WA 98008 Email: Jacque.Klug@ecy.wa.gov Phone: 425-649-7270 General Water Rights Inquiries: Arlene Harris Department of Ecology 3190 160th Avenue SE Bellevue WA 98008 Email: Arlene.Harris@ecy.wa.gov Phone: 425-649-7020