§ 11.4 - Loss of Water Rights

• Jurisdiction: Washington

§11.4 LOSS OF WATER RIGHTS

A perfected water right is appurtenant to the property upon which it is used and remains valid in perpetuity—provided the water as a general proposition continues to be put to beneficial use. Water rights may, however, be extinguished or lost to another along the way. Several different bases for extinguishment or loss are noted in the following subsections.

(1) Common law—abandonment

A court will not lightly decree an abandonment of a water right; however, under the common law, an intent to abandon a right, coupled with an actual relinquishment thereof, will result in an abandonment. Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wn.2d 769, 947 P.2d 732 (1997); Jensen v. State Dep't of Ecology, 102 Wn.2d at 115; Sander v. Bull, 76 Wash. 1, 6, 135 P. 489 (1913); Miller v. Wheeler, 54 Wash. 429, 435, 103 P. 641 (1909).

(2) Common law—prescription

Although "prescriptive rights are not favored by the law," Downie v. City of Renton, 167 Wash. 374, 377, 9 P.2d 372 (1932), it is "recognized doctrine that rights to the use of flowing waters may be acquired by prescription." Dontanello v. Gust, 86 Wash. 268, 270, 150 P. 420 (1915). The Washington Supreme Court has described the requirement for prescription as follows: "In order for the respondent to succeed upon the theory of prescription he must show that he had adversely possessed the water in the stream for the statutory period of 10 years, and that that possession has been open, notorious, exclusive, hostile, and continuous." Smith v. Nechanicky, 123 Wash. 8, 12, 211 P. 880 (1923)

Note, however, that public waters cannot be adversely possessed. McLeary v. State Dep't of Game, 91 Wn.2d 647, 652, 591 P.2d 778 (1979). Further, the ability to acquire the water rights by prescription was terminated with the 1967 enactment of RCW 90.14.220, which provides as follows: "No rights to the use of surface or ground waters of the state affecting either appropriated or unappropriated waters thereof may be acquired by prescription or adverse use."

(3) Common law—estoppel and laches

Estoppel and laches have also provided the basis for the loss of water rights. For examples of estoppel, see Wilson v. Angelo, 176 Wash. 157, 163, 28 P.2d 276 (1934), and Hollett v. Davis, 54 Wash. 326, 332, 103 P. 423 (1909). For an example of laches, see Rigney v. Tacoma Light and Water Co., 9 Wash. 576, 38 P. 147 (1894).

(4) Statutory relinquishment

Beginning in 1967, any person "who voluntarily fails, without sufficient cause" to exercise a water right for five consecutive years may have relinquished that right. RCW 90.14.160-180. This rule applies clearly to appropriative rights established prior to the water codes of 1917 and 1945, RCW 90.14.160; to riparian rights, RCW 90.14.170; and, less clearly, to rights embodied in certificates issued pursuant to the two codes, RCW 90.14.180. (RCW 90.14.180 is less clear because it begins with the words "Any person hereafter entitled...," while the RCW 90.14.160 and .170 relinquishment provisions do not include the word "hereafter." DOE has historically construed relinquishment of certificated rights under RCW 90.14.180 to apply to all water rights established under RCW 90.03.330, RCW 90.44.080, or RCW 90.44.090—regardless of the date of their establishment). The constitutionality of the 1967 relinquishment statute, arising in the context of a "taking" challenge, was upheld in Department of Ecology v. Grimes, 121 Wn.2d 459, 478, 852 P.2d 1044 (1993).

Under statutory relinquishment, the burden of proof is first on DOE to prove the lack of beneficial use for the requisite period. The burden then shifts to the property owner to show the nonuse fits within specified statutory exceptions or exemptions. State Dep't. of Ecology v. Acquavella, 131 Wn.2d 746, 758, 935 P.2d 595 (1997); Pac. Land Partners, LLC v. State Dep't of Ecology, 150 Wn.App. 740, 208 P.3d 586 (2009) (Div. III), review denied, 167 Wn.2d 1007 (2009); City of Union Gap v. State Dep't of Ecology, 148 Wn.App. 519, 195 P.3d 580 (2008) (Div. III); Motley-Motley, Inc. v. State, 127 Wn.App. 62, 75, 110 P.3d 812 (2005), review denied, 156 Wn.2d 1004 (2006).

Exceptions to relinquishment provided in RCW 90.14.130(1) and (2), which are available either for "sufficient cause" for nonuse or by expressly stated factual situations, have been expanded...