§ 11.6 - Processing a Water Right Application

• Jurisdiction: Washington

§11.6 PROCESSING A WATER RIGHT APPLICATION

The processes of acquiring a new water right and changing an existing water right are similar. Both start with an application filed by the applicant with the DOE, with two exceptions: a change processed by (1) a water conservancy board or (2) an irrigation district, as noted in §11.5(2), above. From there, several alternatives exist to provide applicants with some processing relief from the normal processing time frames.

(1) DOE processing—normal

Generally, water right applications and changes relating to the same water source, whether surface or ground, are processed in the order they are filed. An applicant's place in line constitutes an existing right for purposes of the water code. Schuh v. State Dep't of Ecology, 100 Wn.2d 180, 187, 667 P.2d 64 (1983). DOE is authorized to process applications for changes and transfers of water rights independently of applications for new water rights. RCW 90.03.380(5). In addition, pending applications for new water rights are not entitled to protection from impairment due to the transfer of existing water rights. Id. An exception to the general rule that applications are processed in the order received is that an earlier-filed application for a change or transfer may be skipped over if sufficient information is not available for processing that earlier-filed application and DOE gives the applicant 60 days' notice. RCW 90.03.380(5)(c).

(2) Priority processing

A DOE rule provides for prioritized processing of permit applications, thereby allowing for some applications to be processed aHead of others. This rule (known as the "Hillis Rule") was adopted after the Washington Supreme Court ruled that DOE should engage in formal rulemaking under the Administrative Procedure Act, Chapter 34.05 RCW, to set priorities for processing water right applications. WAC 173-152-050; see Hillis v. State Dep't of Ecology, 131 Wn.2d 373, 401-02, 932 P.2d 139 (1997). Under the Hillis Rule, a new water right application may be processed prior to the processing of other applications under the following circumstances: (1) "immediate action is necessary for preservation of public health or safety," WAC 173-152-050(1)(b); or (2) "a proposed water use that is nonconsumptive and if approved would substantially enhance or protect the quality of the natural environment," WAC 173-152-050(2)(c). See Dep't of Ecology, Pol-1021, Water Resources Program Policy: Priority Processing—Water...