How we use water affects all of us — businesses, farms, communities, and the environment. Growth in residential development, business, and agriculture has increased competition for water. Dwindling salmon stocks and their listing under the Endangered Species Act have heightened concern about wasteful or illegal water use and compliance with water resources laws.
Laws regulating water use are not new. Even when Washington’s population was smaller and water demand was low, there was recognition that water use required regulation to reduce conflicts among competing water users and to protect the resource. The Legislature established the Surface Water Code in 1917, the Groundwater Code in 1945, and added provisions addressing water for fish and wildlife in 1949.
Chapter 90.54 RCW, the Water Resources Act of 1971, set the stage for the series of rules that set instream flow levels as water rights, as well as a compliance effort to protect those flows.
What is illegal water use?
According to the Washington Water Code, it is illegal to:
- Divert surface water or withdraw groundwater without a valid permit, certificate, or water right claim, unless it is a valid groundwater withdrawal under the permit exemption in RCW 90.44.050.
- Not comply with the conditions of your water right authorization, including:
- divert or withdraw more water than authorized (annual and instantaneous quantity)
- irrigate more acres than specified or outside the specified place of use
- divert or withdraw water outside the season of use specified
- use non-authorized locations to divert or withdraw water
- use water for purposes other than those specified
- fail to meter, record, and report water use, if required
- use water in a manner that does not comply with permit and/or certificate provisions (such as instream flow restrictions, fish screen requirements, family farming, and others)
- Waste water
- Divert or withdraw water that prevents a senior water right from receiving their full measure
- Use water when ordered to halt
- Willfully interfere with or destroy water works
Why is compliance important?
While Washington state has a long history of regulating water use, compliance with water use laws has become increasingly urgent to:
- Protect legal water users from impairment or loss of water by those using water without a right, or beyond the terms of their right.
- Protect those with senior (older) water rights from harm by those with junior (newer) rights.
- Keep enough water in streams to protect the environment, restore fish runs, and other instream values.
- Ensure that water taken without authorization is returned to the stream for those waiting in line for new water rights, and to help restore stream flows.
- Ensure long-term sustainable water supplies.
- Create awareness about the importance of wise use of Washington’s limited water resources.
How do we gain compliance with water laws?
The goal of the compliance program is to manage the public's water resources by encouraging voluntary compliance with state water law, and by taking consistent, fair, and assertive enforcement actions throughout the state. We rely on voluntary compliance and formal enforcement to improve stream flows in 16 fish critical basins where low stream flows are a problem for salmon populations. We also rely on voluntary compliance and formal enforcement to protect senior water rights throughout the state. Our compliance plan includes the following actions:
- Detect and act on illegal water use.
- Provide technical and educational information to assist the public in complying with the requirements of their water rights and applicable water laws.
- Continue the water metering program in the fish critical basins. Verify meter installation, manage metering data, follow up on non-reporting water users, and compare metered water use against actual water rights.
- Use watermasters who are currently working in Ferry, Stevens, Pend Oreille, Spokane, Walla Walla, Whatcom, Okanogan, Chelan, Douglas, Kittitas, Yakima, Benton, Columbia, Garfield, Grant, Lincoln, Franklin, Adams, and Asotin counties, as well as a special focus on the Columbia River.
- Stop junior water uses when water flows drop below the levels set in instream flow rules.
- Enforce court orders, particularly to implement the Yakima adjudication.
How does the compliance & enforcement process work?
When we determine that a violation has occurred or is about to occur, we first attempt to achieve voluntary compliance. As part of this first response, we offer information and technical assistance in person, by phone, or in writing. Our technical assistance efforts are focused on identifying one or more ways to legally meet the person's needs.
We may also take immediate action if we believe the violation is causing harm to other water rights or to public resources (RCW 90.03.605 (2)).
If education and technical assistance do not achieve compliance, we move to a formal enforcement action. First a notice of violation and/or a formal administrative order (RCW 43.27A.190) is issued. If the violation continues, we can assess a civil penalty (RCW 90.03.600). We can also seek court injunctions or criminal prosecution to achieve compliance with Washington’s water right laws and regulations.
Notice of violation: A notice of violation officially informs the recipient that they have violated, or pose the potential to violate, the water code.
Administrative order: An administrative order directs violators to take certain actions within a specified time frame. An example of a directive contained in an order may be to “immediately cease and desist unauthorized use of water.” Failure to comply with an administrative order may result in civil penalties.
Civil penalty: The maximum penalty for violating Washington water laws ranges between $100 and $5,000 per day for each separate violation, based on the seriousness of the violation.
Appeal process: You may appeal an administrative order or penalty notice to the Washington Pollution Control Hearings Board. The order or penalty document will provide information on the appeal process.
Disagreements may be a civil matter: Disagreements between private parties regarding water use may need to be settled in court. For example, a court settlement may be needed if you believe your neighbor’s water use is interfering with yours. Court settlements are most necessary if one or more uses are based on claimed rights that have not been confirmed in a water rights adjudication.
How do we determine the seriousness of a violation?
We consider the following criteria when assessing penalties for violating water use laws or regulations:
- Did the violation result in a public health risk or property damage?
- Was it a willful or knowing violation?
- Was the violator unresponsive after being notified?
- Did the violator have a history of prior violations and enforcement actions?
- Did the violator benefit economically from non-compliance?
Our goal is to ensure that water users comply with the state's water laws so that other legal water users are not impaired, water use remains sustainable over the long term, and the environment is protected for the benefit of people and nature.