§ 11.8 - Updates to the Water Rights Law

• Jurisdiction: Washington

§11.8 updates TO THE WATER RIGHTS LAW

A variety of updates to the statutes related to water rights law are set out below.

(1) Water conservation

RCW 90.54.180, enacted in 1989 and amended in 2007, sets forth six "encouragements" to carry out "water use efficiency and conservation programs and practices consistent with" the fundamentals of water policy declared in RCW 90.54.020. Those encouraged under RCW 90.54.180 include "state and local governments, individuals, corporations, groups and other entities." The six directives range in subject matter from public education efforts to increasing storage capacity and from state financial assistance for construction of "[w]ater source expansion" to encouraging voluntary participation in "water efficiency and conservation programs." See also RCW 90.03.005, enacted in 1979, and waste prohibitions provisions contained in RCW 90.03.400 and RCW 90.44.110.

(2) Municipal water rights

Water rights claimed for municipal supply purposes are exempt from relinquishment pursuant to RCW 90.14.140(2)(d). "Municipal supply purposes" is a term of art for which no statutory definition existed prior to 2003. The Municipal Water Law of 2003, which addressed a wide range of municipal water right and supply issues, defined "municipal supply purposes" and "municipal water supplier." RCW 90.03.015, .500-.591; see also Dep't of Ecology, Water Resources Program Policy 2030 (rev. 05/14/09 withdrawn, currently under revision). As enacted, this municipal water law allows municipal water suppliers to change the place of use of municipal supply purpose water rights through Department of Health approval of water system plans, instead of through the statutory process in RCW 90.03.380. RCW 90.03.386. Additionally, certificates for water rights that had been issued by DOE (or a predecessor agency) on the basis of the installation of "pumps and pipes" (rather than awaiting actual full beneficial use of water), were deemed certificates "in good standing" when the applicant met the statutory criteria set forth in RCW 90.03.330. See State Dep't of Ecology v. Theodoratus, 135 Wn.2d 582, 957 P.2d 1241 (1998), for a discussion of "pumps and pipes" water right certificates. In Lummi Indian Nation v. State, 170 Wn.2d 247, 241 P.3d 1220 (2010), the Washington Supreme Court upheld unanimously the constitutionality of the 2003 enactment in the context of facial challenges based on separation of powers and substantive and procedural due...