Water Law 101: Episode 1

What is a water right?

The following article is a transcript from the podcast "Water Law 101." Listen to the origninal audio. 

Intro: Even experts can have a hard time wrapping their heads around Washington water law. One person who seems to have a better understanding than most is Mike Gallagher, a hydrogeologist who manages our Water Resources Program in the state’s southwest region. Mike gives a presentation to newcomers at Ecology to help them understand the basics of Washington water law. Now, he’s agreed to share his knowledge with the rest of Washington via a monthly podcast we’re calling Water Law 101.

Q:  Mike, what is a water right?

A: Okay, thanks Jimmy, a water right in and of itself is the beneficial use of a reasonable quantity of water for a beneficial purpose during a certain period of time, usually January 1 to December 31, but sometimes it can be an irrigation right from May 1 to September 30, for example. Anyway, a reasonable period of time at a certain place and a holder of that water right has the use of that water exclusive of everyone else.

Q: You said a beneficial use, so what is a beneficial use, I mean, I assume irrigation’s a beneficial use, but is say, a waterpark a beneficial use?

A: A beneficial use of water is pretty broadly defined and can include things including municipal water supply purposes, multiple domestic purposes where you have a development of multiple homes off a single source of water, it can include stock watering, it can include industrial or commercial purposes where water’s used for a very specific industry for a variety of uses within that industrial complex or commercial uses. It can include irrigation, in fact, the largest use of water in Washington is outdoor irrigation, primarily of crop circle, crop land in Eastern Washington. Other beneficial uses include recreation and wildlife propagation, even the generation of power to run water through a turbine and spin that turbine to generate electricity is considered a beneficial use of water, it’s a non-consumptive use, but it is still a beneficial use of water and requires a water right.

The big three or four users of water in Washington are outdoor irrigation for commercial farming crop growing purposes and municipal water supply in industrial use and stock watering. And power generation is the largest non-consumptive use in the state.

Q: There are three kinds of water rights?

A: Yes, there are certificates, permits, and claims.

So, I’ll start with a claim just to kind of clear the air on that a little bit. A claim is, there was a time in state government when individuals could submit a form back to Ecology, during a claims registry period. The periods were 1979, another period in 1985, and most recently in 1997 to mid-1998, where a property owner, farmer, homeowner, business industry, municipality, could file a report or form to Ecology claiming that they used water from this source for surface water prior to the effective date of the state surface water code of 1917 or from this groundwater source, from this well, prior to the 1945 groundwater law. So, they’re claiming this right, and that in that claim they’re claiming that there’s a continuous use of water from that date. We’ve seen claims as old as the early 1900s from various municipalities or power generation groups that have been upheld as valid claims because they’ve continuously used that water. That’s a claim. Only a superior court can determine the validity of a claim. So, we have roughly 170,000 claims already in Washington, in our database throughout the state. The vast majority of them are already permit-exempt wells, which I could get to a little later on, on groundwater permit-exemption.

Permits are permission from Ecology, from the state, to develop a water right into a certificate. So, the applicant has filed their application, they’ve had a successful report of examination, completed either by Ecology or by a consultant on their behalf, and that water is permitted to be put to full beneficial use. Often times many projects that use water, it takes years to get to full beneficial use whether it’s a farm starting from scratch or a residential development — with a new water right it takes years for those homes to be built and the full beneficial use to be documented.

However, once that’s achieved, once all the permit conditions are met, then we issue a water right certificate and that is a legal record of the water right and it’s recorded with the appropriate county auditor, and it’s considered a perfected water right and it’s also considered a property right. And so, those are the three types of water rights we have in Washington. Claims, especially for continuous use, beneficial use of water prior to 1917 or 1945, a permit, and a certificate.

Q: Thanks. So, I know you’ve mentioned a couple of times, and just to show my ignorance before coming to Ecology, you’ve mentioned groundwater and surface water, and I know when I first got here I really didn’t know the difference, I assumed if it was on the ground, like a lake, it’s groundwater, and can you kind of get into the differences in groundwater and surface water and especially how they apply to water rights?

A: Yes. So, groundwater is water that comes from the aquifers below the ground. If the aquifer has a natural discharge of a spring, then that becomes surface water. And all of our rivers and creeks and lakes, and ponds, for the most part, are considered surface water. So those are the differences, groundwater is from aquifers, surface water is what’s on the ground already. Surface water is your lakes, rivers, streams, creeks, and rivers, and groundwater is aquifers below ground, and the only way you can get that water out of ground is with a well and pumping it out of the ground with a pump in the well.

Q: And for groundwater, you don’t always need a water right, is that correct?

A: That is correct. For groundwater, under the groundwater code of 1945, there are four exemptions where one does not need a water right to withdraw groundwater from the ground by way of a well. For indoor domestic purposes in most of the state, it’s 5,000 gallons a day. For outdoor irrigation, it’s one-half acre of non-commercial, and I emphasize non-commercial, lawn and/or garden.

And then there’s water supply for stock use for horses, cows, pigs, goats, those types of animals. That quantity is actually under state law, unlimited, for the direct feeding of water to those animals. However, if you have a large stock operation, you’re probably going to need a water right for the operation of maintaining those animals, the cleaning and the washing and everything else related to the stock operations you have, whether it’s a dairy or some type of stockyard, but the actual feeding of water to stock animals does not require a water right.

And the fourth exemption is an additional 5,000 gallons a day for commercial or industrial purposes, and this could include things like a commercial nursery business, they need water to water their plants that they’re selling, as long as they stay under 5,000 gallons a day, in most of the watersheds in Washington, they do not need a water right, so that’s an example of a commercial use. I will also add that 5,000 gallons, especially for domestic purposes, seems like a lot of water, and it is, very few people use that amount for domestic purposes, in fact, probably nobody, or if they did, at the end of the month their electric bill would be so high that they’d think twice about doing that again next month, but that is what is in law, it’s been in law since 1945 and it hasn’t been changed since then.

Q: Now are there any exemptions for surface water?

A: No, there are not. In Washington state, any diversion of surface water from a stream, lake, river, creek, other water body, requires a water right. And also a small difference, at least how Ecology looks at the difference between groundwater and surface water, we consider groundwater as a withdrawal and it’s measured in gallons per minute, whereas surface water is considered a diversion and it’s measured in cubic feet per second.

That’s all the time we have for this month’s installment of Water Law 101. Join us next month when we continue our explanation of water rights in Washington.