Washington State Water Law Primer.

Simply put, a water right is a legal right to use a certain amount of water for a beneficial purpose.  The Washington Department of Ecology (“Ecology”) is responsible for managing the state’s water resources and administers the permit systems for water rights for surface and ground water.  A water right certificate grants the right to appropriate and use the water for the purposes set forth in the certificate; the water is a state resource allocated via the water right system Ecology maintains paper files for each water right application submitted.  These paper files serve as the complete record for each water right.  Information from these files has also been entered into a searchable digital database, Ecology’s water rights explorer.

Washington follows the doctrine of prior appropriation, which means that the first person to put water to beneficial use has a senior water right.  This system aims to prioritize water allocation based on historical use, ensuring a fair and orderly distribution of this vital resource.  Water rights can be lost if they are not used for a beneficial purpose “for a period of five successive years.” RCW 90.14.180.  This is also known as “relinquishment.”

To obtain a water right in Washington, individuals or entities must file an application with Ecology.  Ecology evaluates applications based on factors such as the source of water, intended use, and potential impacts of that use on senior water right holders.  There are four (4) general types of Water Claims and “Rights” recognized by Ecology:

• Claims – claims to pre-1917 surface water or 1945 ground water appropriations required to have filed a water right claim during claim periods.
• Permits – permit to appropriate water and put to beneficial use during application process.
• Certificates – the paper certificate granting right to appropriate water per the terms of the certificate.
• Exempt Groundwater Withdrawals – withdrawals that do not require a paper certificate when the withdrawal is below a certain level and for a use set by statute or rule.

Water rights may be granted for various purposes, including domestic use, agriculture, industry, and power generation.

General Stream Water Rights Adjudication Process.

A general stream water rights adjudication is a legal process used to quantify and prioritize legal water use within a designated area.  The present adjudication involves Water Resource Inventory Area (“WRIA”) 1 (the “Adjudication”).  WRIA 1 (also often referred to as the Nooksack Basin) encompasses most of Whatcom County as well as small portions of Skagit County.  In 2020 when the Lummi Nation and Nooksack Tribe requested that Ecology commence an adjudication in WRIA 1 to bring all groundwater and surface water rights into a comprehensive adjudication in state court, including tribal claims.  In May 2024, Ecology filed a Petition for Adjudication (the “Petition”) in the Whatcom County Superior Court to adjudicate all claims of a water right in WRIA 1.  The Adjudication will involve everyone who claims a right to withdraw water from a permit-exempt or non-permit-exempt well or diverts water from a surface waterbody.

After filing the Petition, Ecology must present and obtain a Court order directing it to serve a Summons and the Petition to each of the estimated ten thousand (10,000) plus identified potential claimants.  The Summons will include a Claim form to be completed by the claimant and will specify a date for when the Claim form must be filed with Ecology.

Current Status of the Adjudication. 

The Court has not yet approved Ecology’s proposed Summons; however, a hearing is set for December 3, 2024, wherein it is expected that the Court will approve the Summons and final Claim form.

Once approved by the Court, Ecology will likely commence service by certified mail in January or February of 2025.  Ecology has indicated that it will propose a return date, or filing date, for the Claim form to be in May of 2026.  We will have more certainty around these timeframes after the next Court hearing on December 3^rd.

Once each claimant has submitted a Claim form for each of their water rights and/or exempt well with Ecology, claimants will have an additional three (3) years to file evidence supporting their claim(s).  Sometime after that there will be a report of finding issued by Ecology regarding each claim, and then later the Court will hold a hearing of the report of finding and/or that the claim is contested and then later still, the Court will issue a decree of appropriation confirming the extent of the validity and legality of the claimed water right, and the water right’s priority date.  This entire process may take years if not decades.

Regardless of whether any water appropriator’s wells are found to be exempt from the permitting process, all water appropriators are required to participate in the Adjudication if they want to retain the legal right to appropriate the water; the first step being the completion of an Ecology Claim form.

Is Submitting a Water Right Application the Same as Submitting a Claim Form in the Upcoming Adjudication?

No.  The application for a water right through Ecology is separate from the Adjudication.  An adjudication is limited to determining the legal validity of a water right and its priority date.  For those uses of water from a well that exceed the permit exempt well limitations, a water right certificate is required in order to establish such use is a legal water appropriation.  Hence, it is strongly recommended that those water users that require a water right certificate secure their right to use the water and proceed with applying for a water right with Ecology as soon as possible.

If you have questions regarding your water right(s) or the upcoming Adjudication, please contact Sara Frase or Jon Sitkin or of our Water Law Practice Group via email at sfrase@csdlaw.com, or jsitkin@csdlaw.com or  via telephone at (360) 671-1796.