§ 11.2 - Water Rights Doctrine

• Jurisdiction: Washington

§11.2 WATER RIGHTS DOCTRINE

The historical development of Washington's water rights law is discussed below.

(1) Historical overview—development of Washington's water rights law within the federal system

Under the United States Constitution, the authority to control and regulate waters within a state is shared by the United States and the individual states. The United States Constitution, by various sections such as the Commerce Clause, U.S. Const., art. I, §8, cl. 3, provides the federal government with significant powers over waters within a state. United States v. Appalachian Elec. Power Co., 311 U.S. 377, 61 S. Ct. 291, 85 L. Ed. 243 (1940). The states, in the exercise of their sovereign power to govern, also have wide-ranging authority pertaining to use and regulation of those same waters. U.S. Const. amend. 10; Sporhase v. Nebraska, 455 U.S. 935, 102 S. Ct. 1424, 71 L. Ed. 2d 646 (1982). Thus, in general terms, the federal constitution contemplates a system of possibly concurrent application of federal and state government powers over waters within each state. See Frank J. Trelease, NATIONAL WATER COMM'N STUDY NO.5, FEDERAL-STATE RELATIONS IN WATER LAW chs. III, IV (1971).

A state's powers over waters within its boundaries are subject to curtailment through concepts of preemption arising primarily from the federal constitution's supremacy clause. U.S. Const., art. VI, cl. 2. Federal actions, such as the enactment of legislation by Congress or specific implementation by the federal executive of such legislation, may restrict or limit the range of powers over water vested in a state. Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S. Ct. 988, 55 L. Ed. 2d 179 (1978). Whether a state has been prevented from exercising its powers over water is, at base, a matter of congressional intent. See City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973); Campbell v. Hussey, 368 U.S. 297, 82 S. Ct. 327, 7 L. Ed. 2d 299 (1961); Mintz v. Baldwin, 289 U.S. 346, 351-52, 53 S. Ct. 611, 77 L. Ed. 1245 (1933).

(a) Federal "deference" policy

Historically, the United States has declined to exercise its constitutional powers fully in the field of water rights establishment and administration. Congress, for example, has never enacted a comprehensive federal water rights code. Rather, since the earliest days of settlement in the western states, federal policy has been one of deference to state water rights laws and encouragement of the enactment and implementation of those laws. California v. United States, 438 U.S. 645, 673, 98 S. Ct. 2985, 57 L. Ed. 2d 1018 (1978); United States v. New Mexico, 438 U.S. 696, 98 S. Ct. 3012, 57 L. Ed. 2d 1052 (1978); see also Andrus v. Charlestone Stone Prods. Co., 436 U.S. 604, 98 S. Ct. 2002, 56 L. Ed. 2d 570 (1978); Cal. Or. Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 55 S. Ct. 725, 79 L. Ed. 1356 (1935); Note, Federal-State Conflicts Over the Control of Western Waters, 60 Colum. L. Rev. 967 (1960); Frank J. Trelease, Federal-State Relations in Water Law ch. IV (1971). This deference policy has been so extensive that many major federal activities using water, whether conducted by the United States directly or through federal licensees, are subject to state water rights laws. California v. United States, 438 U.S. 645. Likewise, water rights for federal lands, including reserved lands, often must be secured pursuant to these state laws. United States v. New Mexico, 438 U.S. 696. Even in the one well-publicized area of water rights establishment under federal law, that is, water rights created by implication under the U.S. Supreme Court's "reserved rights" doctrine of Winters v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908), the United States has chosen to subject those rights to both the "general adjudication" of water rights and the administration of such rights in state proceedings. See 43 U.S.C §666 (1976); Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976); Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 103 S. Ct. 3201, 77 L. Ed. 2d 837 (1983).

(b) State water rights law primacy

All of the western states have implemented comprehensive, sophisticated water rights programs. Richard L. Dewsnup, National Water Commission, A Summary-Digest of State Water Laws ch. 2 (1973); 1 Robert E. Clark, Waters and Water Rights ch. 2 (1984). These programs, often referred to as water "codes," establish unitary systems covering all phases of administration of water use, including, among others, the adjudication and regulation of existing water rights and changes to existing rights, creation of new water rights, and water resources planning. An essential feature of these state laws is the protection of all existing water rights, whether created under federal or state law. See Colo. River Water Conserv. Dist., 424 U.S. at 810-12.

(2) Historical overview—development of Washington's water rights law

Washington's water rights law development can be broken down into three distinct eras: (1) early statehood era (up to 1917), (2) water code era (1917-1967), and (3) the modern era (1967 to the present).

(a) The early statehood era (up to 1917)—unregulated "greening" of the state

In the early years of statehood, a "dual system" of water rights law developed. In re Waters of Doan Creek, 125 Wash. 14, 215 P. 343 (1923). This system recognized water rights established under both the common-law "riparian" doctrine and the several statutory and common-law variations of the "prior appropriation" doctrine. Guided by a policy of "greening" the state, this era emphasized diverting and withdrawing public waters and putting them to "beneficial use" without any government regulation or other involvement. From the outset, this "dual system" caused confusion because of the conflicting policies of the two doctrines. See Frank J. Trelease, Coordination of Riparian and Appropriative Rights to the Use of Water, 33 Tex. L. Rev. 24 (1954).

(b) The "water code" era (1917 to 1967)—regulated "greening" of the state

The most important single event in the development of Washington's water rights laws was the enactment of the 1917 surface water code, Chapter 90.03 RCW. By this single action, water rights law in Washington shifted dramatically from an unregulated system to a comprehensive centralized system administered by a single state official. Three decades later, this system was supplemented by enactment of the 1945 groundwater code, now Chapter 90.44 RCW, for the "purpose of extending the application of such surface water statutes to the appropriation and beneficial use of groundwaters within the state." RCW 90.44.020. [Note: Washington statutes and regulations most often use the term "groundwater." However, "ground water" also appears, for example, in certain provisions of Chapter 90.03 RCW.] During this era the predominant objective in the implementation of the codes was to emphasize the diversion of public water for various beneficial uses.

(c) The modern era (1967 to present)—upgrading the water codes while subduing the historic "greening" policy

Beginning in the mid-1960's, the long-standing dominant greening policy began to give way when significant modifications to the state's water management policies were enacted. These changes were brought about in large part by a continued decrease in public water available for new appropriations, a greater competition for the use of those remaining waters (including expanding demand from thirsty southwestern states), and an ever-increasing emphasis on the environmental protection of the in-stream values of the state's streams and lakes. Although the water code's permit system continued as the cornerstone of Washington's water rights law, these modifications (enacted primarily between 1967 and 1971) centered on "fundamentals" of state water policy that...