§ 11.3 - Establishing Water Rights

• Jurisdiction: Washington

§11.3 ESTABLISHING WATER RIGHTS

Historical and current processes for establishing water rights are discussed below.

(1) "Pre-code" establishment

Prior to statehood, there were two common bases for establishment of a surface water right, either by virtue of riparian ownership or through a notice posting and actual use of water in conformity with prevailing customs. Tenem Ditch Co. v. Thorpe, 1 Wash. 566, 20 P. 588 (1889). Any party who wanted to develop a statute-based water right would physically post notice in the diversion area (on a tree, fence, or post, for example), file a similar notice at the county courthouse, and thereafter begin diverting and using the water as needed. This practice, with roots in other western states, was adopted in Washington by statute in 1891. Laws of 1891, ch. 142. Under the 1891 enactment, a notice system was established under which certain requirements and formalities were required when appropriating water from the public domain.

(2) The 1917 surface water code—establishment of surface water rights

The 1917 surface water code established, for the first time, a comprehensive water resource management and regulation program in Washington. The fundamental tenets of the 1917 surface water code continue to this day. RCW 90.03.010 provides in pertinent part as follows:

The power of the state to regulate and control the waters within the state shall be exercised as hereinafter in this chapter provided. Subject to existing rights all waters within the state belong to the public, and any right thereto, or to the use thereof, shall be hereafter acquired only by appropriation for a beneficial use and in the manner provided and not otherwise; and, as between appropriations, the first in time shall be the first in right.

The "manner provided" is the permit system established by RCW 90.03.250-340. The first sentence of RCW 90.03.250 provides as follows:

Any person, municipal corporation, firm, irrigation district, association, corporation or water users' association hereafter desiring to appropriate water for a beneficial use shall make an application to the department for a permit to make such appropriation, and shall not use or divert such waters until he has received a permit from the department as in this chapter provided.

This language, coupled with the "in the manner provided and not otherwise" language of RCW 90.03.010, quoted above, makes it clear that the sole means by which a new right to surface water can be established under state law since 1917 is through the permit system of RCW 90.03.250-340, now administered by DOE.

(a) The permit system

The permit system of the 1917 surface water code embodies three basic elements: (1) the filing of an application for establishment of a water right with DOE, RCW 90.03.250; (2) the issuance of a permit by DOE following review and approval, RCW 90.03.290; and (3) the subsequent issuance by DOE of a water right certificate if all permit conditions are satisfied, RCW 90.03.330. The permit describes an inchoate water right not only to appropriate water but also to construct physical works associated with the appropriation. A certificate evidences a perfected water right with a priority date relating back to the date of the filing of the application.

(b) Application

A person desiring to establish a surface water right must submit an application to DOE for a permit to appropriate surface water. RCW 90.03.250. The application form contains a space for the name and post office address of the applicant; source of water supply; nature and amount of the proposed use of the water; the time during which the water will be required each year the location and description of any ditch, canal, or other water work; the time for the completion of construction; and the time for the complete application of water to the land. There are additional specific information requirements depending upon whether water is used for agricultural purposes, power purposes, construction of a reservoir, municipal water supply, or mining purposes. RCW 90.03.260. Further, an applicant must submit fees for DOE's acceptance and processing of an application. RCW 90.03.470. An application must be signed by the applicant or its authorized representative. If the applicant is not the legal owner of all the land where the water will be used, the landowner(s) must sign as well. Dep't of Ecology, Guid-2040, Water Resources Program Guidance: Guidance for Ensuring Proper Signature on Applications and Forms (Oct. 2013), http://www.ecy.wa.gov/programs/wr/rules/images/pdf/guid_2040-rev.pdf.

The act of filing an application establishes a priority date for the water right—if the application is eventually granted. RCW 90.03.270. The date of filing an application also reserves a place in line. Thus, an application embodies an existing right to be considered in the administration of the water code's "change" and permit provisions. See Hillis v. State Dep't of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997); see also Schuh v. State Dep't of Ecology, 100 Wn.2d 180, 187, 667 P.2d 64 (1983). Especially relevant is RCW 90.03.380(5)(a), which provides: "Pending applications for new water rights are not entitled to protection from impairment, injury, or detriment when an application relating to an existing surface or ground water right is considered."

(c) Newspaper notice

The applicant is required to publish a notice of the filing of the application, prepared by DOE and furnished to the applicant, in a newspaper of general circulation in the local area "once a week for two consecutive weeks." RCW 90.03.280. The notice contains a provision that written protests may be filed with DOE within 30 days of the last date of publication.

(d) DOE investigation and determination

After publication of a notice that an application has been filed, DOE is required to conduct an investigation pertaining to the application. RCW 90.03.290. The investigation by DOE consists of written findings of fact and determinations as to four basic questions:

(1)	Is there any public water available?
(2)	To what beneficial use will the water be applied?
(3)	What is the effect on existing water rights?
(4)	Will the appropriation detrimentally affect the public welfare?

See generally Hillis, 131 Wn.2d at 383 (describing four-part test). In Stempel v. State Department of Water Resources, 82 Wn.2d 109, 508 P.2d 166 (1973), the court injected environmental and ecological factors into the decision-making process of DOE. Stempel involved an application to appropriate water from Lake Loon in Spokane for domestic-resort purposes. The court, in setting aside a Department of Water Resources' decision of approval of an application in 1968, held that the "detriment[al] to the public welfare" criteria of RCW 90.03.290 included consideration of "the total environmental and ecological factors" set forth in two statutes enacted three years after the department's decision (in 1971), namely: the Water Resources Act of 1971 (WRA), Chapter 90.54 RCW, and the State Environmental Policy Act of 1971 (SEPA), Chapter 43.21C RCW. Stempel, 82 Wn.2d at 117. See § §11.5(2)(b) and 11.10(1), below, for discussions of the WRA and SEPA.

(e) Permit

A favorable "report of examination" prepared by DOE leads to the issuance by DOE of a permit to appropriate surface water, which normally contains various conditions often including an instream flow protection condition for the benefit of fishery habitat. Three of the most important conditions relate to the time periods allowed to (1) begin work on the water project, (2) complete the project, and (3) apply water to the authorized beneficial use. Extensions of these time periods may be approved by DOE for "good cause shown," that is, when found...