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Water Rights 101: How do we allocate water in Washington?

posted Sep 11, 2019, 12:30 PM by Simon Bakke   [ updated Sep 11, 2019, 2:07 PM ]

https://sites.google.com/a/re-sources.org/main-2/blog/cleanwater/_draft_post-2/BrettBaunton_NooksackRiver_BBP6549_NooksackGold_1920_Web.jpg

Nobody truly owns Washington’s water.

Water – whether underground or in lakes, streams, or frozen in the mountains – is owned by the people of Washington state and managed by the Department of Ecology (Ecology). It’s a public resource and can’t be owned by one individual or group. People or groups may be granted the right to use water for a defined purpose, in a specific place, a specific amount, and drawn from a specific location. The government doesn’t own water, and when they allow someone to use it, that user doesn’t suddenly “own” that water either.

The way Ecology issues the right to use water is based on the legal doctrine of Prior Appropriation (or “first in time, first in right”) which means people who started using water first are senior to those after them. During water shortages, more junior rights may be diminished to fulfill senior rights first.

Every time someone wants to start using water, their water right must all pass a four-part test:
  • Water must be physically AND legally available;
  • Water must be used beneficially — serving a productive purpose, like for drinking or watering crops, and cannot be wasted;
  • Water use must be in the best interest of the public;
  • Water use must not impair other existing water uses.

Tribes have the longest-standing water rights — which are at risk.

Treaty Tribes in Washington have the most senior water rights because they have been on these lands for much longer than settlers. Tribes have water rights both within and outside of their reservations. The off-reservation water rights are designated to leave enough water remaining in rivers and streams for healthy salmon populations. This water right is tied to their treaty-given right to fish, and is especially important when salmon return to spawn in the summer when water shortages are common.

However, most Tribes in Washington do not have their water rights quantified. Ecology doesn’t know exactly how much water each Tribe should legally have access to.

Lummi Nation and Nooksack Indian Tribe requested a federal adjudication — the legal process of determining what their water rights are — of their off-reservation water rights in 2011. No action has been taken on that request. Tribal water rights can also be determined at the state level by adjudicating a whole watershed (including all the streams and groundwater that flow into a major water body). To do this, though, Tribes must waive their sovereign immunity (their government's right to consent to being sued) and participate in the legal process at the Superior Court level. Without quantifying off-reservation water rights, there is no way to enforce or protect Tribal water rights.

Water bodies can have their own water rights.

Streams, lakes, and other surface waters can also have their own water rights. These are known as Instream Flows, which are “minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same.” (RCW 90.22.010) Ecology sets instream flows through a scientific process for particular reaches of streams and rivers or lakes.

The Nooksack River watershed (Water Resource Inventory Area 1) was the first Instream Flow set in the state. When the rule was finalized in 1986, most of the Nooksack watershed closed permanently or seasonally to new water rights. A common misconception is that the Nooksack Instream Flow Rule must be met, and we’re breaking the law if it’s not met. Instead, it is an aspirational goal of what flows should be during certain times of the year for certain stream reaches. Instream flow rules often draw a line in the sand to not allowing new water rights. Flow levels for the Nooksack and its stream reaches can be found here.

Do I need a water right for the water I currently use or want to start using?

The answer is typically no. You don’t need a water right...
  • If you receive your water from a utility, water district, shared water system (Group A or B water systems), or water association.
Or in these instances of groundwater withdrawals:
  • If your house is served by a single, private well (or is on a well serving up to 6 nearby homes) that was put to use before 2018, then you may use up to 5,000 gallons per day. If after 2018, then you may use up to 3,000 gallons per day over an annual average.
  • If you use a well for industrial or commercial purposes (like farming), you may use up to 5,000 gallons per day.
  • If you use a well for stock water, there is no limit.

You do need water rights if you use water directly from rivers, lakes, springs or from the ground (aside from the exceptions listed above). Ecology has a water right database where you can verify if your property has a water right.

Questions? Contact Karlee Deatherage, Clean Water Policy Analyst at KarleeD@re-sources.org.

(photos by Brett Baunton)