What laws govern the Instream Flow Rule making process?
The authority for setting flows is derived from state statutes. The primary statutes relating to flows and flow setting are:
- Water Code, Chapter 90.03 RCW, in section 247 describes Ecology’s exclusive authority for setting flows and describes conditioning permits to established flows.
- The Minimum Water Flows and Levels Act of 1967 Chapter 90.22 RCW set forth a process for protecting instream flows through adoption of rules. Among other provisions, it says Ecology must consult with the Department of Fish and Wildlife and conduct public hearings.
- The Water Resources Act of 1971 Chapter 90.54 RCW, particularly section 020, includes language that says base flows are to be retained in streams except where there are “overriding considerations of the public interest”. Further, waters of the state are to be protected and utilized for the greatest benefit to the people and that allocation of water will be generally based on the securing of “maximum net benefits” to the people of the state. This Act also authorizes Ecology to reserve waters for future beneficial uses.
- Construction Projects in State Waters Chapter 77.55 RCW (formally Chapter 75.20 RCW), section 050 requires Ecology to consult with the Department of Fish and Wildlife prior to Ecology making a decision on any water right application that may affect flows for food and game fish. Fish and Wildlife may recommend denial or conditioning of a water right permit.
- The Watershed Planning Act Chapter 90.82 RCW, in section 080 specifies that local watershed planning groups can recommend instream flows to Ecology for rule-making.
Rule making for flows is done through Ecology’s rule-making authority in the Administrative Procedure Act Chapter 34.05 RCW.
For more information and links, visit the Dept. of Ecology’s website www.ecy.wa.gov/programs/wr/instream-flows.
Why do streams need a water right?
Current Washington water law uses the Prior Appropriation Doctrine, which allocates water rights on a "first in time, first in right" basis. This doctrine was a turn-of-the-century response to humans taking water from streams for "out-of-stream" uses such as mining, livestock watering and irrigation. The approach was designed to protect "senior" water-right holders from newer, or "junior," users. It was not designed to keep water in the stream. In fact, in the early days of Washington water law, if human demand for water equaled or exceeded streamflow, all of the stream's water could eventually be allocated to out-of-stream uses.
This approach to water management was devised during a time when there were fewer people and plenty of fish. People did not know much or worry much about fish habitat. That is not the case today, as we have recently learned a lot about what fish need to survive and prosper, and why streams need a water right.
Salmon species have different water needs at various stages of their life and consequently at different times of the year. One critical need is to have adequate streamflow for returning adult fish ready to spawn. High flows can also help keep a stream healthy by moving gravel and sediment, and by reforming the channel on a regular basis.
Knowing that, for example, coho need high winter flows and chum need adequate summer flows, we see that it's not quite as easy as proposing to store water from the winter rains for humans to use during the summer drought, or to use groundwater instead of surface water, since the two are interconnected. We see that careful consideration must be given to how much water is in the stream-and in the ground-year round (excerpt from "Why do streams need a water right?" By Tom Anderson, HydroLogic Services Co. Published by the Port Townsend and Jefferson County Leader on April 5, 2007.)
How can I find out about current water law?
Visit the WSU website at www.jefferson.wsu.edu and click “Water” and then click “Water Law” for a series of videos and relevant documents.
What is an exempt well?
An exempt well is a well drilled to provide water that does not require application for a water right. A property owner may use water from such wells for industrial or domestic uses up to 5,000 gallons per day. A permit-exempt well may also be used to provide water needed for irrigating up to ½ acre of domestic lawn or garden, and for stock watering.
What is the legislature doing to clarify water rights statewide?
Changes to water management policy is usually an active and controversial part of each legislative session. Over the past ten years, new water policy ideas have been included in as many as 50 or 60 statute proposals each year. A lot of recent attention has been on ideas to improve stream flows, bringing certainty to municipal water suppliers, improvements to water relinquishment provisions and support for watershed planning. Clarifying water right status through improved adjudication processes has also received increased attention.
A major policy bill intended to improve water management along the Columbia River passed during the 2006 session and another significant bill related to improving the quality of the waters entering Puget Sound passed during the 2007 session. Both of these bills are actively being implemented.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
From my private well, do I always have rights to 5,000 gallons per day?
The state groundwater laws allow for certain uses of water from a private well without obtaining a permit or certificate. These wells are commonly called "exempt wells". These uses include domestic or industrial (agriculture) at up to 5,000 gallons per day, up to 1/2 acre in area for a lawn or non-commercial garden, and an unlimited amount for stock watering purposes.
However, it is important to understand that there is not an absolute right to always use a 5,000 gpd domestic exemption. Under a number of circumstances, uses of water under the exemption may be curtailed or not allowed. The 2005 Attorney General Opinion on stock watering specifically addresses the question whether Ecology may use other legal authorities to limit or restrict use of exemption. The following material is quoted directly from the opinion:
Although Ecology lacks authority to categorically limit the amount of water that may be withdrawn for stock-watering purposes without a permit, other statutes that authorize Ecology to regulate the use of water may affect withdrawals for stock-watering, just as they may affect other exempt withdrawals and withdrawals requiring a permit. For example, in Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 94-95, 11 P.3d 726 (2000), the Supreme Court held that where Ecology has closed water bodies and ground water in hydraulic continuity with such bodies to new withdrawals, it may prohibit new withdrawals that “will have any effect on the flow or level of the surface water.” Such a new withdrawal might be a new withdrawal for stock-watering or it might be a new withdrawal for some other purpose. As a second example, consistent with principles of prior appropriation, Ecology has authority under RCW 90.44.130 “to limit withdrawals by appropriators of ground water so as to enforce the maintenance of a safe sustaining yield from the ground water body.” See also RCW 18.104.040(4)(g), authorizing Ecology to limit well construction in areas “requiring intensive control of withdrawals in the interests of sound management of the ground water resource.” Depending on the specific facts and circumstances, then, these statutes could affect withdrawals for stock-watering purposes, just as they could affect withdrawals for other purposes (AG0 2005, No. 17, pp. 7-8).
In the case of the proposed Walla Walla instream flow rule and other instream flow rules that have been established, Ecology has limited or closed uses of the exemption under these authorities to protect existing water rights and instream flow rights.
Further, an exempt use is a water right with a priority date like other water rights. If use an exempt right would impair any senior water right (which includes instream flow rights), such use would be subject to regulation. The actual water right associated with the well is determined by the amount of water put to a beneficial use. So in the future if a judicial review of all water rights (an adjudication) were to occur, and water availability was limited, the private well user would probably have a right to the amount beneficially used and a seniority date tied to the first use of the water. A similar analysis might take place by a judge if a neighbor claimed to have a senior water right which was being impaired by the private well.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Will this instream flow rule threaten my water rights or private property rights?
An instream flow rule establishes a water right for instream resources. The water right has a seniority date established at the time the rule is finally issued. So an instream flow rule would be a junior water right to all water currently being put to beneficial use via a permit, certificate, claim or permit-exempt well. Those senior water rights will not be affected by the junior right established in the instream flow rule.
However, instream flow rules also deal with water availability. If water is determined to be unavailable in some parts of a watershed, the instream flow rule may contain regulatory limits on the use of new water, including the issuance of new water rights or the use of permit-exempt wells. When necessary, the limits placed on new water use by instream flow rules have been developed based on local needs to protect fish while providing support for people and their communities.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Can Ecology take my land for its water right?
No, Ecology cannot take private lands as a result of instream flow rules or water management.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Can the government seize my water right or otherwise turn it off?
Ecology is responsible for managing the state's waters. An individual is granted the right to use those waters if:
- the water is put to a beneficial use and that use is not discontinued (except for some exceptions) for 5 years or longer;
- the water is available;
- there is no impairment of a senior water right holder; and
- the use is deemed to be in the public interest.
As long as a water right holder meets those four tests, he/she can continue to use the waters of the state. If a water user should stop using some/all of their water right (for reasons other than the exceptions provided by law) for more than five years, the state may relinquish that water right so the next water user waiting in line can put the water to use.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Is rainwater use restricted? Do I need a permit to use rainwater?
Please see Ecology's new rain catchment fact sheet at: http://www.ecy.wa.gov/programs/wr/nwro/sjc_rwc.html.