The funny thing about water law is that it can seem as fluid as the medium it’s meant to manage.
The relatively new state of Washington began granting water rights in 1917 when the first water code was adopted. The precedent in the western U.S. was then “first in time, first in right” – which deviated radically from the model in the eastern U.S. where any land owner adjoining a stream had the “riparian” right to use it.
Our new law required a permit to withdraw “waters of the state.” To track use of this public resource the law created a water right permit system — the right to use water, but not own it, based on seniority.
A permittee had to show they weren’t going to waste water or cause harm. If they proposed to use a “reasonable amount” of available water for their “beneficial” purpose while not “impairing” senior permittees or the public, they got a water right.
Given the atmosphere and motivations of this state a hundred years ago, the legislature’s first water code concerned five uses, listed in this order: agriculture, hydropower, reservoirs, municipal supply, and mining. Most certainly the push came from eastern Washington irrigators and dam builders, and the fast-growing cities of Puget Sound.
The water needs of rural county residents were not a hot topic.
Getting into the weeds a little more, let’s say you were granted a water right permit that says you can divert flow from a river up to 5 cubic feet per second (cfs) and 30 acre-feet per year (30 feet deep over 1 acre). If your capabilities and conveyance can only handle half of that, then what’s left is nothing more than paper water rights.
The 1917 code says that only the amount put to beneficial use is the actual, perfected water right and for that amount a certificate will be issued and recorded with the county auditor.
Similarly, a “relinquishment” statute passed in 1967 says if you didn’t use your full permitted amount for more than five years then you’ve relinquished the portion of your water rights that went unused.
In effect, these rules meant “use it or lose it” and created a disincentive to conserve water even in droughts.
When the original surface water code was passed, the largest-volume diverters of stream water likely felt threatened by other large-volume users. By mid-1900s there were enough wells being drilled that the threat of impact from one powerful well pump on another well had also risen, resulting in the state groundwater code of 1945.
The same procedure for getting a surface water right permit was applied to wells but smaller-volume users were exempted — defined as less than 5,000 gallons per day, and other factors.
Apparently, residential use outside cities and towns was still considered inconsequential to the legislature. Or too politically dangerous.
Bitten by exemptions
Through a series of court rulings over the last century the definition of “beneficial use” of water — owned in common by everyone in the state—expanded to withdrawals for other commercial uses as well as in-stream benefits such as supporting recreation, fish and wildlife. The public value of keeping some portion of flow in the stream channel was recognized but now had to be quantified—for each stream in the state.
You can probably guess what comes next.
Biologic indicators such as the decline of salmon populations was getting the attention of water managers and regulators. With senior water rights for massive river diversions and well withdrawals already in play, the spotlight turned to whether water-right-exempt groundwater uses as defined in 1945 also had to uphold a key premise of the original water code, that “subject to existing rights, all waters in the state belong to the public.”
The debates continue and revolve around more and more precise determinations of how much new uses, large or small, impact existing uses and the public — including public enjoyment and livelihoods generated from streams.
Paper water, relinquishment, use it or lose it, the “one molecule” rule, and more. The courts across this state have been enlisted for over a century to dissect the words and sentences of the 1917 and 1945 water codes to interpret our evolving legislature’s laws of water.
For the 2020 Water Year (started Oct. 1):
• Snow depth at the Dungeness SNOTEL station, elev. 4,010 feet, as of Jan. 6: 3 inches (precipitation is 44 percent of normal); Number of days temp. stayed below freezing = 5.
• Rain in Sequim through Jan. 5 at the Sequim 2E weather station (sea level): Total rainfall = 6.24 inches; High temp. = 63 degrees F on Oct. 16; Low = 3 degrees F on Nov. 25 (suspect data).
• River flow at the USGS gage on the Dungeness (Mile 11.2): High = 873 cubic feet per second (cfs) on Oct. 22 and Dec. 21; Low = 98 cfs on Dec. 16. Range for the past month ~ 100-900 cfs.
• Flow at Bell Creek entering Carrie Blake Park: 1-2 cfs; Bell Creek near the mouth, at Washington Harbor: non-storm flow generally 5-10 cfs.
Ann Soule is a hydrogeologist immersed in the Dungeness watershed since 1990, now Resource Manager for City of Sequim. The opinions expressed are those of the author and do not necessarily represent policies of her employer. Reach Ann at firstname.lastname@example.org or via her blog at watercolumnsite.wordpress.com.