§ 11.10 - Administering Water Rights

• Jurisdiction: Washington

§11.10 ADMINISTERING WATER RIGHTS

Administration of water rights codes under SEPA, the regulatory authority of DOE and appeal of DOE decisions are discussed below.

(1) State Environmental Policy Act

Actions taken by DOE in the implementation of the water rights codes are generally subject to the policies and mandates of the State Environmental Policy Act (SEPA), Chapter 43.21C RCW. Stempel v. State Dep't of Water Res., 82 Wn.2d 109, 508 P.2d 166 (1973). See Volume 5, Chapter 14 (State Environmental Policy Act—Programmatic/Planned Actions/SEPA-GMA), and Volume 6, Chapter 1 (State Environmental Policy Act—Project Level Review), of this deskbook for detailed discussion of the requirements of SEPA. Rules implementing SEPA that are applicable to state agency actions generally, including the processes for determining whether a detailed statement (commonly referred to as an environmental impact statement or EIS) is required to be prepared for any such action, are set forth in Chapter 197-11 WAC.

By RCW 43.21C.035, rulings on applications for water right permits for irrigation in amounts of 50 cubic feet per second or less are expressly exempted from the "detailed statement" (EIS) preparation requirement of SEPA. RCW 43.21C.035. Various categories of other DOE actions taken under the surface and groundwater codes have also been exempted by rule. See WAC 197-11-800, which provides the following exemption pertaining to water withdrawals:

Appropriations of one cubic foot per second or less of surface water, or of 2,250 gallons per minute or less of ground water, for any purpose. The exemption covering not only the permit to appropriate water, but also any hydraulics permit, shoreline permit or building permit required for a normal diversion or intake structure, well and pumphouse reasonably necessary to accomplish the exempted appropriation, and including any activities relating to construction of a distribution system solely for any exempted appropriation.

WAC 197-11-800(4).

(2) DOE regulatory enforcement authority

DOE is directed, pursuant to the 1917 surface water code, to "regulate and control the diversion of water in accordance with the rights thereto." RCW 43.21A.064(3). A primary regulatory tool relied upon by DOE is contained in RCW 43.27A.190, enacted in 1969. This section authorizes DOE to issue a "regulatory order" regulating water use "whenever it appears" to DOE that a person "is violating or is about to violate" provisions of...