Water Rights

Overview

A water right is a legal right to use a certain amount of public water for a beneficial purpose.

The law of water rights in Washington is complex. The law is based on "common law" (law based on custom and tradition and court decisions) as well as on state statutes enacted by the legislature. Washington has an extensive body of case law on water rights dating back to the early 1900s and detailed administrative regulations adopted by the Department of Ecology. (See below.)

The State Department of Ecology (DOE) is responsible for managing the state's water resources and administers the permit systems for water rights for surface and ground water. A wealth of information about water rights administration and the department's water resources program is available on the Department of Ecology Water Rights page.

Statutes and Administrative Regulations

The following list of water rights related statutes and regulations highlights those that are most relevant to local governments. This is not intended to be a comprehensive list.

Statutes

The statutes for water rights are codified in Title 90 RCW. Below is a list of selected chapters.

• Ch. 90.03 RCW (Water Code) – Includes determinations of water rights
• Ch. 90.14 RCW (Water rights – Registration – Waiver and relinquishment, etc.)
• Ch. 90.16 RCW (Appropriation of water for public and industrial purposes)
• Ch. 90.22 RCW (Minimum water flows and levels)
• Ch. 90.28 RCW (Miscellaneous rights and duties)
• Ch. 90.40 RCW (Water rights of United States)
• Ch. 90.42 RCW (Water resource management) – Addresses trust water rights and water banking
• Ch. 90.44 RCW (Regulation of public groundwaters) – In particular, see RCW 90.44.105 (Consolidation of rights for exempt wells)
• Ch. 90.66 RCW (Family Farm Water Act)

See also RCW 19.27.097 (Building permit application – Evidence of adequate water supply)

Regulations

• Ch. 173-152 WAC (Water Rights)
• Ch. 173-153 WAC (Water Conservancy Boards)

Selected Court Decisions

The following list of case summaries highlights key court decisions on water rights issues affecting local governments. This is not intended to be a comprehensive list of all cases.

A water conservancy board lacks standing to challenge the Department of Ecology’s denial of administrative division requests related to water rights.

Benton County Water Conservancy Board v. Department of Ecology (2024) – This case looked at whether the Benton County Water Conservancy Board (Board) had standing under the Administrative Procedure Act to challenge a Department of Ecology (DOE) policy concerning water rights transfers. DOE processes water rights transfers and conservancy boards help expedite voluntary water right transfers; the two agencies hold the same authority to review water right transfer applications, but DOE has mandatory oversight. This case involved the Board’s filing of an administrative decision confirmation request with the Department to confirm a division of a water rights that had been placed in trust. The Board argued that DOE’s denial of the requests inflicted cost and delay and more on the Board. The court held that under the Administrative Procedure Act, a party must meet the following to have standing to challenge an agency action: injury-in-fact requirements and a zone of interest test. The court held that the Board failed to meet these and has no standing to challenge DOE’s decision. 

Further factual development was needed to determine if an irrigation district’s water rights certificates could be transferred to a city.

Burbank Irrigation District #4 v. Department of Ecology (2023) – This case involved a proposed transfer of water rights by Burbank Irrigation District to the City of Pasco. The Franklin County Water Conservancy Board granted the transfer application, subject to approval by the Department of Ecology. Ecology denied the application, concluding that the transfer would result in an unlawful enlargement of water rights under the district’s certificate. On appeal, the Pollution Control Hearings Board (PCHB) granted Ecology’s motion for summary judgment, that approval of the application would cause unlawful enlargement of water rights. The superior court reversed the decisions of the PCHB and Ecology and restored the Conservancy Board’s decision approving the transfer; in its decision, the superior court addressed issues the PCHB did not reach. The matter was appealed to the court of appeals.

This case has involved facts that this case summary will not go into. The main takeaways from the court of appeals decision are:

1. The matter should not have been decided on summary judgment because of the disputed facts surrounding the amount, scope, and character of the water rights granted by the district’s various water rights certificates; and
2. Under APA review, the court of appeals sits in the same position as the superior court and neither the court of appeals nor the trial court can address issues that were not decided by the PCHB.

Ultimately, the court of appeals affirmed reversal of the PCHB’s summary judgment decision but remanded to the PCHB to consider additional summary judgment issues.

Whatcom County v. Hirst, 186 Wn.2d. 648 (2016) – In Hirst, the Washington Supreme Court ruled that Whatcom County’s comprehensive plan and development regulations failed to protect water resources, in violation of the Growth Management Act (GMA). The court held that the GMA requires local jurisdictions to make an independent determination about water availability before it can approve development that requires a water source. And this process needs to be set forth in its planning documents. Whatcom County could not rely upon the Department of Ecology’s instream flow rule (the “Nooksack Rule”) to satisfy this duty. The Nooksack Rule closed many watersheds in the county to further appropriations, but did not regulate permit-exempt wells allowed pursuant to RCW 90.44.050 in most areas. Evidence was presented that instream flows were not being met for a good part of the year, yet development relying on permit-exempt wells was continuing unchecked in much of the county.

Foster v. Dept. of Ecology, 184 Wn.2d 465 (2015) – The court reversed DOE's approval of a water right permit issued to the city of Yelm. The court held that DOE exceeded its statutory authority by applying the "overriding considerations of public interest" exception of RCW 90.54.020(3)(a) to permit the city to withdraw water that would impair the minimum flows of river basin streams, because the minimum flows constituted prior appropriations and the exception may not be applied to permanently impair senior water rights with earlier priority. This exception, by its terms, permits only temporary impairment of minimum flows. And, municipal water needs are not the kind of "extraordinary circumstances" required for the exception.

Swinomish Indian Tribal Community v. Dept.of Ecology, 178 Wn.2d 571 (2013) – The court held that the "overriding considerations" exception of RCW 90.54.020(3)(a) did not provide the department with the authority to reserve out-of-stream year-round noninterruptible beneficial uses that would impair minimum instream flows set by administrative rule, because such a reading would conflict with provisions of the state water code establishing that the minimum instream flows established by the original rule were appropriations creating an existing water right that could not be impaired merely by weighing the benefits that would flow from future beneficial uses and without following the legal requirements for making a valid appropriation of water.

Five Corners Family Farmers v. State, 173 Wn.2d 296 (2011) – RCW 90.44.050 requires a permit for groundwater withdrawals and also provides exemptions from that requirement for certain uses, one of which is for stock-watering purposes. The court held that withdrawals of groundwater for stock-watering purposes under this exemption are not limited to any particular quantity by RCW 90.44.050.

Lummi Indian Nation v. State, 170 Wn.2d 247 (2010) – The state supreme court rejected a constitutional challenge to the 2003 amendments to municipal water law (SESSHB 1338), which, among other things, explicitly defined certain nongovernmental water suppliers as municipal and made that definition retroactive. The court held that these amendments did not violate the separation of powers doctrine or facially violate due process.

Pacific Land Partners, LLC v. Dep't of Ecology, 150 Wn. App. 740, review denied, 167 Wn.2d 1007 (2009) – A property owner challenged a Pollution Control Hearings Board decision upholding an administrative order that water rights on the property had been relinquished due to nonuse for a beneficial purpose. The board found that the property owner did not beneficially use his water right within five years of his acquisition of the right and that the property owner did not prove any statutory exceptions to nonuse. The court affirmed the board's decision.

City of Union Gap v. Dept. of Ecology, 148 Wn. App. 519 (2008) – The owner of a water right relinquishes that right to the state if the water right is not used beneficially for five years. But the owner does not relinquish that right, despite nonuse, if it is claimed for some "determined future development" or for "municipal water supply purposes." Here, a developer bought water rights intending to sell them to a city. The court concluded that the sale did not take place within the required five-year period before the developer relinquished the water rights. Nor did the developer satisfy the requirements of either the "determined future development" or the "municipal water supply purposes" exceptions to the general rule of relinquishment after five years of nonuse of the water rights.

City of West Richland v. Dep’t of Ecology, 124 Wn. App. 683 (2004) – The city and a water conservancy board challenged a Pollution Control Hearings Board decision rejecting a proposed transfer of a property owner's unperfected groundwater rights acquired under the Family Farm Water Act (FFWA), chapter 90.66 RCW, to the municipality for use as a municipal water supply, mainly lawn irrigation. The court held that the FFWA does not allow the proposed change of the property owner's water rights from agricultural use to municipal use.

Dept. of Ecology v. Campbell & Gwinn, 146 Wn.2d 1 (2002) – RCW 90.44.050, which provides an exemption from groundwater permit requirements for withdrawal of groundwater for domestic uses of 5,000 gallons or less per day, applies regardless of whether the water would be used for single or group domestic uses. As such, the exemption did not apply to permit 5,000 gallons per day to be withdrawn for domestic uses on each lot in developer's 20-lot development.

Postema v. Pollution Control Hearings Board, 142 Wn.2d 68 (2000) – Hydraulic continuity between groundwater and a surface water source with unmet minimum flows or that is closed to further appropriation is not, in and of itself, a basis on which to deny a groundwater appropriation permit.

R.D. Merrill Company v. Pollution Control Hearings Board, 137 Wn.2d 118 (1999) – Under RCW 90.44.100, a groundwater permit may be amended to change the location from which the water is drawn, or to change the manner or place of use of the water, notwithstanding the fact that the water has not actually been applied to a beneficial use. But, under that statute, a groundwater permit may not be amended to change the purpose for which the water is used.

Dept. of Ecology v. Theodoratus, 135 Wn.2d 582 (1998) – A final certificate of water right, i.e., a vested water right, may not be issued based upon the capacity of a developer's water delivery system, but rather may be obtained only in the amount of water actually put to beneficial use.

Okanogan Wilderness League, Inc. v. Town of Twisp and Dept. of Ecology, 133 Wn.2d 769 (1997) – Under RCW 90.03.380, a change in diversion point (here, from a surface point to wells drawing groundwater) may be granted only to the extent that the water right was put to beneficial use, was not abandoned or otherwise extinguished, and did not cause detriment or injury to other right holders. Under the common law theory of abandonment of water rights, the court held that long periods of nonuse raised a rebuttable presumption of intent to abandon a water right. The presumption that a municipal corporation has intentionally relinquished a water right by not exercising the right for a significant period of time is not rebutted by evidence of the municipality's continuous existence and need for a water supply.

Dept. of Ecology v. Acquavella, 131 Wn.2d 746 (1997), and related cases: Dept. of Ecology v. Yakima Reservation Irrigation District, 121 Wn.2d 257 (1993); Dept. of Ecology v. Acquavella, 100 Wn.2d 651 (1983) – These cases deal with a general adjudication of water rights in the Yakima River Basin that began in 1977.

Hillis v. Dept. of Ecology, 131 Wn.2d 373 (1997) – DOE delayed the decision on a groundwater application by a developer until it conducted a watershed assessment of all applications. The court found the agency was faced with a large number of permit applications, that the watershed assessment would aid the agency in expediting all permit applications, and that the agency had received funding specifically for a watershed assessment. Therefore, the agency's decision to delay the developer's permit was not a violation of the Administrative Procedure Act (APA). However, its decision to create procedures and priorities were new requirements or qualifications that required the agency to conduct APA rule-making procedures.

Hubbard v. Dept. of Ecology, 86 Wn. App. 119 (1997) – Permits to draw water from wells in the river basin must be conditioned on maintenance of the river's minimum flow rates if DOE decides the local groundwater source is significantly connected with the river. The Pollution Control Hearings Board did not err in finding there is significant continuity between the applicant's underground water source and the river.

Rettkowski v. Department of Ecology, 122 Wn.2d 219 (1993) – The court held that DOE did not possess the statutory power to determine the priorities of water rights in the basin. The authority to adjudicate and enforce such waters rights isspecifically granted to the superior courts by Ch. 90.03 RCW. The court also held that the Pollution Control Hearings Board could not adjudicate priorities between water users. The court determined that the only method of ascertaining the priorities of the water rights in the basin was through a "general adjudication." A general adjudication of water rights pursuant to Ch. 90.03 RCW necessitates that all water claimants be joined in a single action in superior court to determine their rights and priorities to the water.

Neubert v. Yakima-Tieton Irrigation Dist., 117 Wn.2d 232 (1991) – The court determined that a district resolution establishing a water access preference for frost protection water users over general water users improperly interfered with existing water rights. The landowners' water rights were governed by the doctrine of appropriation under which an appropriated water right is established and maintained by the purposeful application of a given quantity of water to a beneficial use upon the land. Therefore, because frost protection was a beneficial use, the right to use water for that purpose was within the landowners' existing water rights.

Dept. of Ecology v. Abbott, 103 Wn.2d 686 (1985) – The court held that the 1917 water code established prior appropriation as the dominant water law in Washington. After 1917, new water rights could have only been acquired through compliance with the permit system and existing water rights not put to beneficial use were relinquished. RCW 90.03.005 et seq. The permit system, which had been modified over time to require a permit for all water put to beneficial use, allowed the state to efficiently implement the state water policy. See RCW 90.03.250. 

Attorney General Opinions

The following list of attorney general opinions highlights key opinions on water rights issues affecting local governments. This is not intended to be a comprehensive list.

• AGO 2009 No. 6 (Water – Water Rights – Wells – Interlocal Cooperation Act)
• AGO 2005 No. 17 (Water – Water Rights – Department of Ecology - Rules and Regulations)
• AGO 1997 No. 6 (Water – Water Rights – Wells – Status in Water Rights system of exempt ground Water withdrawals)
• AGO 1996 No. 19 (Water – Department of Ecology – Department of Health – Cities – Counties – Districts – Interpretation of legislation recognizing interties between public water supply systems)
• AGO 1992 No. 17 (Growth Management Act – Department of Health – Board of Health – Buildings – Counties – State Building Code – Water – Requirement of Adequate Water Supply Before a Building Permit is Issued)

Recommended Resources

MRSC

• Blog Posts on Water Resources – Articles written by MRSC staff and contributors, including new legislation and court decisions related to water resources. Articles are listed in reverse chronological order, with the most recent first.

Department of Ecology

• Water Rights – Basic information on water rights permits, specific water rights issues, water laws and policies, water resources data, public notices, and Department of Ecology contacts
• Water Conservancy Boards – Water conservancy boards allow for the processing of water-right transfer applications at the local level and issue records of decision.
• RSS Feeds for New Applications – Water right application feeds show the 10 most recent applications by county or WRIA. Most feeds will link to scanned images of the completed application forms.
• Find your Water Resource Inventory Areas (WRIA) – Use an address to look up your watershed, also known as a Water Resource Inventory Area (WRIA).
• Municipal Water Law – Addresses issues relevant to the 2003 Municipal Water Law - Municipal Water Supply - Efficiency Requirements Act, Chapter 5, Laws of 2003
• Protecting Stream Flows – Provides information on instream flow, an important element of water and river management
• Certified Water Right Examiner Program – Program to certify qualified individuals as water right examiners to conduct proof examinations of perfected (fully developed) water right permits and change authorizations
• Water Rights Search Guidance – Provides direct public access through a geographical interface to Ecology’s voluminous records of water rights and claims
• Water Resources – Links to Ecology information on water supply

Department of Fish & Wildlife

• Water Resource Inventory Area (WRIA) Map – Clickable map showing fish populations, federal protection status, and hatchery information for all WRIAs