As our population continues to grow, water, one of our most vital and finite natural resources, will inevitably become more and more valuable. Complicating matters, water law is state specific, often resulting in widely varying standards affecting water sources that cross state boundaries. While these complications and varying standards are outside the scope of this blog post, this post provides a broad overview of the basics of Washington water law.
Prior Appropriation – First in Time, First in Right
In Washington, water is a public resource and is not owned by any individual or group. Instead, users can acquire a right to use water based on the doctrine of prior appropriation or the common phrase ‘first in time, first in right.’ Water rights are established based on a priority system with earlier users having a higher priority than later users. Generally, the date of priority is established based on the date on which the user validly appropriated the water (i.e., applied the water to a beneficial use). Practically, this system means that in the event of a water shortage, more junior users may not have any water to use by the time the more senior users have appropriated their share. These general doctrines apply to surface water and groundwater.
How Do You Establish a Water Right?
Larger users (e.g., many farming or commercial operations) apply for permits or certificates from the Washington Department of Ecology. For smaller users who do not already obtain water from a public water service (e.g., rural domestic users), they often obtain groundwater through permit-exempt wells. Permit-exempt wells allow uses of groundwater without the need to apply for a permit for a single or group of residential homes or for industrial uses limited to up to 5 gallons per day, for irrigation of less than a half of an acre of a noncommercial garden or lawn, or water for livestock. Having an exemption to the more formal permitting/certification process, however, does not mean a user can take water from a source that has been entirely appropriated. For example, an owner of a permit-exempt well, even if they use less than 5 gallons per day of water, generally cannot negatively impact a more senior user.
Who Can Hold a Water Right?
Businesses, individuals, public servicers, and other users are not only restricted by other traditional water users, but also by instream flows established by the Washington Department of Ecology. Stream flows in Washington’s surface waters, which provide a base level of water to preserve wildlife, fish, scenic, aesthetic and other environmental values, are protected by statute and court rulings. Instream flows are similar to other water rights – they do not affect more senior water rights; however, once established, they restrict and may not be impaired by future users or more junior rights.
Can You Transfer Water Rights?
Yes, water rights may be transferred. In fact, water rights can be transferred, and the water diverted, to a use on a different property from where the water naturally resides. Conversely, simply because a landowner has water naturally residing on their property (e.g., a stream running through the property or groundwater underneath the property) does not mean they have rights to use the water if the water has already been fully appropriated by other water rights. Water rights are appurtenant to the land, meaning that when a landowner sells their property, if there is a valid water right associated with their property, that water right automatically transfers to the new owner with the property. Similarly, if you are planning to purchase a property that does not obtain water through a public water service, purchasers should be wary of assuming that the property has a sufficient water supply for their intended use simply because there is surface water and/or ground water naturally residing on or under the property.
For those interested in researching more formally established, non-exempt water rights, the Washington Department of Ecology has an online tool that allows the public to research water rights permits, certificates, or claims and view available documents. The database is not fully comprehensive (per the Department’s website, as of March 2021, the Department has mapped 70% of the water rights and claims of water use documents on file), but it can be a useful resource
If you would like more information regarding Washington’s water rights systems or if you would like assistance in applying for, researching, or transferring water rights for your current or prospective property, please contact Stephanie Gero Dahlstrom or any other attorney in Montgomery Purdue PLLC’s environmental law practice group.