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Home / Washington Business - November/December 2005 / Policy: Making Sense of Water Laws and Policies |
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Policy: Making Sense of Water Laws and Policies |
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Written On: November/December 2005 |
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Written By: by Chris McCabe - Governmental Affairs Director for Environmental Policy |
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Two basic systems of water law exist in the United States: the riparian doctrine and the prior appropriation doctrine.
Riparian water law exists mostly in the eastern United States. Under this doctrine, the right to use water from a stream or lake is attributed directly to ownership of land on the watercourse. This provides that all land owners along streams or lakes are entitled to use water solely for their properties, provided each use does not decrease the ability of other land owners to use water from the same source.
During droughts, all land owners have equal priority and must cut back on use. This theory works best if water is abundant.
Settlement of the West brought forward an entirely different set of issues. Dry land with fewer rivers and streams and the need to transport water across great distances made the riparian approach impractical.
Thus 19 western states established a different form of law to manage water, the prior appropriation doctrine, which was created by miners who extended the principles of mining claims to water rights. From this doctrine, three key principles govern water law in Washington: first in time, first in right; use it or lose it; and beneficial use.
Under first in time, first in right, water rights are created in chronological order dating from first use. This creates senior and junior right holders that govern the order and quantity in which water can be used. The most senior right holder has first priority to use as much as necessary, up to the limit of the right. The next user in line can access his quantity, and so on. The more junior the right, the less likely the right holder will be able to get the maximum allotment. A junior right holder may get no water at all during droughts.
Under use it or lose it, a water right is valid only if perfected—meaning the right holder begins using the water and the permitted use continues. If any portion of that right goes unused for a period of five years, the unused portion is abandoned or relinquished and becomes subject to re-appropriation.
The third principle of this doctrine, beneficial use, provides that a water right is granted subject to the holder putting the water to a beneficial use. In the event the holder wants to use the water dirrerently or to make the resource available to another party, he must apply to the water regulator, the Department of Ecology, for a change in use permit.
Very old, long-time water rights have been established by the courts, and new water rights are rarely granted on streams or aquifers that, according to DOE, have been fully appropriated. In fact, DOE hasn’t granted any new water rights in this state since 1994.
2006 AWB Policy Goals
At the AWB Policy Summit this fall, board members adopted legislative objectives for the 2006 session. Of primary concern this year is revising the use it or lose it policy underlying state law, which is in direct conflict with other state water-conservation objectives.
Under current law, water right holders are encouraged to conserve water. For farmers, irrigators, businesses and industries heavily reliant on water rights, this creates a dilemma. Conserve water to comply with state law at the risk of losing the right for lack of use.
AWB believes this is unfair. Water right holders should be given tax incentives to conserve water and not fear losing water rights in the future.
AWB also supports legislation that recognizes water as a private property right, not a public right. In addition, AWB supports policies that ensure enough water for a growing economy while providing flexibility in the use of existing rights. This includes developing timely and effective water-management techniques—including storage—to minimize or eliminate in-stream flow impacts while meeting the needs of out-of-stream uses.
A wide range of issues will vie for the Legislature’s attention when it convenes in Olympia on Jan. 9. It is also a 60-day session, so time will be of the essence. It is unclear how much time will be devoted to water. Yet water is too critical to ignore.
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