Do I need a water right?Do I have a water right?

Is it valid?

King County Agricultural Water Rights Workshop

November 2, 2010

Overview

Do I need a water right permit? Do I have a water right? Assessing your water right I can’t find a water right. What are my options?

Do I even need a water right?Certain uses of groundwater are exempted from needing a

permit (RCW 90.44.050). There is no permit exemption for surface water.

Stock water (no gpd limit or acre restriction)

Watering a lawn or noncommercial garden that is one half acre or less in size (no gpd limit)

Single or group domestic purposes, not to exceed 5,000 gallons a day

Industrial purposes, including irrigation (5,000 gpd limit but no acre limit)

Do I have a water right?Step 1: Search Ecology’s Water Rights Records

- Must request from Ecology’s regional offices. At this time, records are not available online.

- Helpful information: - Legal description of the property (township,

range, section). County parcel number is useful.- Water right record number (if known)- Former property owner(s) names

Assessing Your Water RightValidity of Water Rights- things to know:Ecology cannot guarantee that the elements

described on a water right document reflect a valid water right and are available to you.

A water right document may be of no value due to non-use of water, unauthorized use, or lack of perfection.

Validity can only be determined in Superior Court.

Important to do an independent evaluation of historical water use.

Researching Historical UseLook at terms of water right record:A priority date (effective date of the right)A fixed point of withdrawal (ground water) or

diversion (surface water)Quantities (both instantaneous and annual)A defined place of use (includes number of acres)Period of usePurpose(s) of useProvisions which govern the use (such as

installation of a metering device or fish screen)

Assessing your water right:Researching Historical Use1. When did water use begin on the

property?2. Who were the previous owners and

how did they use the water?3. Have there been 5 or more years of

consecutive non-use (all or part of the water right)? If so what was the reason of non-use?

Assessing your water right:RelinquishmentRelinquishment, RCW 90.14 (aka

“Use it or lose it”):Five or more successive years of

non-use triggers relinquishment of a water right unless there is sufficient cause to explain the non-use.

The burden to prove that the

right is still in good standing rests on the water right holder.

Assessing your water right:Relinquishment Exceptions-Water unavailability-Military Duty-Legal Proceedings-Special Federal or State

Programs-Irrigation Specific-Standby or reserve rights-Power Development

Rights-Municipal Water Rights

- Water Rights of the United States

- Water right leases for use on new land

- Reclaimed Water Use- Trust Water- Future Determined

Development

Assessing your water right:RelinquishmentIrrigation Specific Reasons for non-use:- Temporarily reduced irrigation due to varying

weather conditions (diversion works must exist and be operational)

- Use of measured or reliably estimated return flows in place of water from the primary source of supply.

- Reduced use of irrigation water due to crop rotation when sound farming practice advises the temporary change of crop type, and the remaining portion of the water right is put to beneficial use.

Researching Historical Water Use:Newspaper clippings (referring

to the property or water system)

Photographs (establishing a date and water use)

MapsLetters (indicating water use or

development)

Books (describing the area)

Historical documents (describing the property and/or water system: homestead documents, notices of appropriations, easements for ditches, etc.)

Tax statementsReceipts for materials

(showing property and water use)

County and state records, and federal archives

Land use records (documenting crops, irrigation company/districts, diversions)

Deeds (showing chain of ownership for water rights and any civil restrictions that might affect thestatutory provision that “the water goes with the land”)

Affidavits (attesting to personal historic knowledge of the water system and water uses; commonly referred to as “Old Timer Affidavits”)

Direct testimony (providing evidence of personal knowledge of the development of water use in the vicinity)

Where to find informationFamily scrapbooks or biblesAttics or basementsLocal museums or historical societiesState archivesCounty auditor’s office (to track property

ownership)County engineer’s office (for maps of early roads

that show ditches and streams, etc.)U. S. Bureau of Reclamation (for water records

that may include historic maps and surveys)Ecology’s regional offices (for copies of existing

water right certificates or claims)Local courthouse (copies of civil suits dealing with

the water and/or property use)

Changes to water use can affect water rightChanges can be made to the point of withdrawal or

diversion, purpose(s) of use, season of use and place of use by obtaining prior approval from the state.

These changes or transfers would be noted in Ecology’s files and reflected in a Report of Examination, although at times there are inevitable delays before these actions are reflected in the state’s records.

Other types of changes may not be documented in Ecology’s files, but could limit the availability of water for your use: subdividing property, developing formerly irrigated lands, changing crop types or

irrigation methods switching over to public water supply systems.

Assessing ClaimsClaim is a statement by a property owner that a pre-code

water right may exist. Ultimately the validity of claimed water rights will be

determined through a general water right adjudication, which is conducted by a Superior Court. In an adjudication the court will either deny or confirm a water right, and direct Ecology to issue a Certificate of Adjudicated Water Right for rights confirmed.

For a water rights claim, it’s important to document when the water was first put to use, that the water has been used continuously, and the quantities of water used at the time of perfection.

Water Right ChangeWater code allows changes to water right certificates,

permits and claims. Changes can be permanent or seasonal or temporary.

File application for change with the Department of Ecology.

We evaluate whether:

A water right was has been developed and maintained by beneficial use. Ecology will make a tentative determination of the extent and the validity of the water right.

Proposed change cannot impair to existing rights,

Proposed change cannot be detrimental to the public welfare (groundwater only)

Water Right ChangeIf your water right change includes adding

irrigation acres, or adding a purpose of use, the proposed use can not increase the annual consumptive quantity. RCW 90.03.380

Annual Consumptive Quantity (ACQ): means the estimated or actual annual amount of water diverted pursuant to the water right, reduced by the estimated annual amount of' return flows, averaged over the two years of greatest use within the most recent five-year period of continuous beneficial use of the water right.

Trust Water Rights ProgramTrust Water Right Program provides a way

to legally hold water rights for future uses without the water right relinquishing. RCW 90.42

Water is held for trust to benefit groundwater and instream flows.

Maintains original water right priority date.

Water rights can be permanently or temporarily placed into the Trust program.

May receive some monetary benefit (leased or bought) if meets conservation goals.

I don’t have a water right- What are my options?

Look for an existing water rightLook for a nearby water right to file a change

application to legally use on your property.

Can change permanently or seasonally

You should investigate water use to make sure you are getting a valid water right

Ecology can provide water right records for your search and technical assistance to help you with your investigation. Remember, we cannot definitively tell you if the water right is valid.

Groundwater Permit Exemption

Does your use meet the terms of the groundwater permit exemption, RCW 90.44.050?

Can you alter your water use to comply with the exemption?

Apply for a new water rightIf you can’t get water through the permit

exemption or an existing water right, you can apply for a new water right. There are significant challenges:Backlog of applications. 1,400 applications in

our region. Instream flows or closed basins exist in

much of our region. Approving a new water right in areas with closures or instream flows would require the impacts to surface water be fully mitigated.

Interruptible water right- could you get by with a water right that might not be available throughout the irrigation season?

More information:

Contact me:Jacque Klug, Section

ManagerDepartment of EcologyNorthwest Regional Office3190 160th Avenue SEBellevue WA 98008Email:

Jacque.Klug@ecy.wa.govPhone: 425-649-7270

General Water Rights Inquiries:

Arlene HarrisDepartment of Ecology3190 160th Avenue SEBellevue WA 98008Email:

Arlene.Harris@ecy.wa.govPhone: 425-649-7020