Water rights

Key Takeaways

• In Washington, waters of the state belong to the public, so a water right is a right to use a volume of water for a defined purpose in a specific place, not ownership of the water.
• Two systems dominate in the United States: riparian rights, tied to owning land that touches the water, and prior appropriation, tied to who first put water to beneficial use.
• Washington runs prior appropriation under chapter 90.03 RCW, where the first in time is the first in right whenever there is not enough water for everyone.
• The permit exemption in RCW 90.44.050 excuses a small withdrawal from the permit process only. It does not grant unlimited water and does not lift the withdrawal out of the priority line.

What It Means

Water rights are the rules that decide whether the owner of a parcel may draw on the stream, lake, or aquifer connected to it, and how much. The right is a right of use. In Washington it is not ownership of the water at all, because RCW 90.03.010 provides that all waters within the state belong to the public.

Two systems dominate in the United States, and which one applies depends on the state the parcel sits in. Under Riparian Ownership rules, the right to use water belongs to the owner of land touching the water, and neighbors share the supply. Under the Doctrine Of Prior Appropriation, the right belongs to whoever first diverted water and put it to beneficial use, and seniority decides who gets water in a shortage. Washington runs the second system, so a parcel's water picture is a question about permits and priority dates rather than frontage.

For a broker this is a value question, not a technicality. A parcel of Real Property with a senior documented right is worth more than identical ground whose only supply is uncertain, and a buyer who plans to irrigate needs the answer before closing, not after.

How It Works in Washington

Water law diverges between states more sharply than almost any other property topic, so the rules below are Washington's specifically.

Washington allocates water by prior appropriation. RCW 90.03.010 provides that, subject to existing rights, all waters within the state belong to the public, that a right to use them is acquired only by appropriation for a beneficial use, and that as between appropriations the first in time shall be the first in right. A new right normally begins with an application to the Department of Ecology under RCW 90.03.250, and the priority date relates back to the date that application was filed rather than the date water first flowed. Rights can also be lost. Under RCW 90.14.160, a right the holder voluntarily fails to use beneficially for five successive years, without sufficient cause, is relinquished and reverts to the state.

The detail students most often get wrong is the permit-exempt groundwater withdrawal in RCW 90.44.050. The statute exempts a withdrawal for stock watering, for watering a lawn or noncommercial garden not exceeding one-half acre in area, for single or group domestic uses not exceeding five thousand gallons a day, or for an industrial purpose not exceeding five thousand gallons a day. Two limits sit inside that. The exemption is from the permit requirement only, and to the extent the water is regularly used beneficially the withdrawal earns a right equal to one established by a permit, which means it takes a priority date and can be curtailed by a senior right. And in the watersheds covered by RCW 90.94.020, a new permit-exempt domestic connection is held to a maximum annual average of 3,000 gallons per day per connection, with a $500 fee paid to the permitting authority at building permit time. A Permit Exempt Well is a narrow allowance, not a free pass.

Example

Delia Marchetti lists a 12 acre parcel near Cle Elum. The house is served by a well, and nothing is on file with the Department of Ecology showing a water right for the parcel.

The buyers, Tomas and Aisha Kettleborough, plan to live there and irrigate a half-acre orchard whose fruit they intend to sell at a roadside stand. Delia's broker walks them through what the well supports. Household use for one home sits well under the five thousand gallons a day the domestic exemption allows in RCW 90.44.050. The orchard does not fit, because the exemption covers a lawn or noncommercial garden not exceeding one-half acre, and fruit grown for sale is not a noncommercial garden. Irrigating it would need a water right the parcel does not have.

The buyers price the gap. An application to Ecology under RCW 90.03.250 is a long process with no guaranteed outcome, so they cut their offer from $540,000 to $495,000, a reduction of $45,000, and plan a quarter-acre orchard for family use instead of a commercial one.

Common Mistakes and Exam Traps

• The exemption in RCW 90.44.050 excuses the permit, not the priority system. An exempt well still carries a priority date and can be curtailed when a senior right calls for water.
• The five thousand gallon figure and the one-half acre figure are separate limits, not one combined test. Five thousand gallons a day applies to domestic use and to industrial use; one-half acre applies to a lawn or noncommercial garden.
• Stock watering under the exemption has no gallons per day number written into the statute, so an answer that assigns stock watering the five thousand gallon cap is repeating a limit that is not there.
• Owning land along a river does not by itself create a Washington water right. Washington allocates by appropriation and priority date, so frontage is not the test.