Water and Law “101” for Small Agricultural Producers

Pierce County Farm Forum Workshop April 28, 2016 Mike Gallagher, Water Program Southwest Regional Office What is a water right? A water right is the legal authorization to use a certain amount of public water for a designated purpose. The water must be put to a “beneficial use”. 3 kinds of water rights: Claim: A “claim” that water was used prior to 1917 Law or 1945 Ground Water Law (Can no longer can apply for a Water Right Claim) Permit: A “permit” is permission by the state to develop a water right – but is not a final water right Certificate: Once all the permit conditions are met, a Water Right Certificate is issued as a legal record of the water right and is recorded with the County Auditor. A water right certificate is considered a right.

2 Do I already have a water right? How do I know? 1) Inquire with the Department of Ecology – - 4 regional offices in Lacey, Bellevue, Union Gap (Yakima) and Spokane.

2) Check with local County Assessor’s Office – you will need the parcel numbers

3) Ask the current property owner – request paper documentation. Ask property owner if they have used the water “continuously”. Many older farmers’ children move away and they no longer farm (and used the water) and a water right can be relinquished – (back to the state due to non-use).

4) If a fairly large acreage property with an existing barn and related farming infrastructure/equipment with extensive and continuous history of farming then – see #3 above.

3 What are the Key Laws relating to Water Rights?

RCW 90.03 – Surface Water Code of 1917 RCW 90.44 – Ground Water Code of 1945

4 vs. Surface Water

For Groundwater: • The withdrawal of the first 5000 gallons per day is exempt from needing a water right • Measured in Gallons per Minute (GPM) For Surface Water: • ANY amount of diversion (withdrawal) needs a water right • Measured in Cubic-feet per second (CFS) • 1 CFS = 449 GPM

5 How does one obtain a Water Right?

The answer must be “yes” to all four of the following questions for each application for a water right: 1. Is the proposed use beneficial? 2. Is water is available, physically and legally? 3. Will existing water users will not be impaired? 4. Is the proposed use not detrimental to public welfare?

6 How is water used in ? “beneficial uses”

Recreation Stockwatering Municipal

Irrigation

Industrial

Fish Propagation Power Propagation What does a Water Right Give You?

If the Four Part Test is met and there are no appeals, then Ecology may issue a water right permit, which specifies: • Source of water • How much can be used • Purpose of use • Place of use

• Conditions of use - (e.g., seasonal, minimum flow restrictions, metering)

And this use is at the exclusion of everyone else….

8 Stages of a Water Right

Stage Purpose

Application Establishes intent to appropriate Application form and $50 fee submitted to Ecology

Ecology (or hired consultant for Ecology Permit approval) “processes” application – Report of Authorization to develop Examination. All elements of the “4 Part Test” Permit will include a development schedule, which specifies the dates by need to be met before a Permit issued, or which you must: 1) begin construction of your water system, 2) complete denied construction of your water system, and 3) put the water to full use, as described in your permit. Proof of Appropriation Water put to beneficial use When the water is put to full beneficial use, permit holder must complete and submit a notarized Proof of Appropriation of Water affidavit form. A Certified Water Right Examiner may need to certify as well.

Ecology issues a Certificate of Water Right, Certificate based on the information Proof of Appropriation Perfection of water right and the certified water right examiners' field inspection (if one is conducted). The certificate The certificate is recorded at the auditor's cannot exceed the amount of water that has office in the county where the project is located, actually been put to beneficial use and at Ecology. What can I use water from an exempt well for? [Exempt Well = <5000 GPD]

• FOUR “Exemptions” • Providing water for livestock (no gallon per day limit or acre restriction) • Watering a non-commercial lawn or garden one-half acre in size or less (no gallon per day limit) • Providing water for a single home or groups of homes (limited to 5,000 gallons per day) • Providing water for industrial purposes, including (limited to 5,000 gallons per day but no acre limit) • It is important to remember that although you are exempt from the water right permit process under the ground water exemption, all other water laws and regulations still apply. For example, there are a number of rules and regulations associated with the actual drilling of the well. • Cannot irrigate two acres by installing four wells (each serving 1/2 acre). • When developing and supplying the domestic or commercial development with water from several wells, all the wells of the development together must pump 5,000 gallons a day (utilizing the domestic and/or commercial permit exemption of 5,000 gpd each) or less to be covered under this exemption. • See: http://www.ecy.wa.gov/programs/wr/comp_enforce/gwpe.html

10 Can a water right be changed?

Yes. • Many water right holders make changes to existing water rights in order to meet changing needs. • Changes can be made to the . Place of use . Point of diversion or withdrawal . Additional points of diversion (s) or withdrawal(s) . Purpose of use (including season of use) However there can be added complexities: • i.e. a point of withdrawal and place of use of a ground water permit can be changed, but the purpose of use cannot be changed until the water right has been perfected (Certificate)

• See: http://www.ecy.wa.gov/pubs/981802wr.pdf

11 Cost Reimbursement Process can help expedite water right decisions Cost Reimbursement – The cost reimbursement option allows a private consultant to do the work that Ecology hydrogeologists and permit writers would ordinarily do. Presently, Ecology has eight consulting firms pre-approved to do this work. Applicants assume the full cost of processing their water right application Cost of cost reimbursement ranges from $5,000 to $25,000 See: http://www.ecy.wa.gov/pubs/0511016.pdf 12 WA has 62 major “watersheds”, or WRIA’s, and each has their own “story”

Pierce County WRIAs

13 How many Water Rights are there in WA?

Water Rights: 53,000 50,000 “Certificates” issued 3,000 “Permits” in development

Claims: 170,000 “Claims” to use surface water and groundwater pre-date modern water law and are called claims – not water rights.

Permit exempt individual wells: 400,000 + A vast majority of which supply water for domestic purposes and for less than ½ acre irrigation of non-commercial lawn and/or garden.

14 Department of Ecology Regions

G1-/S1-

G3-/S3-

G2-/S2-

G4-/S4- Current Number of Pending Water Right Applications Statewide Region Change Change New New Applications Applications Applications Applications April 15, June 30, April 15, June 30, 2016 2008 2016 2008 Central 642 631 1,962 2,196 Region Eastern 135 419 573 1,062 Region Northwest 124 189 1,143 1,505 Southwest 39 103 809 982 TOTAL 940 1,343 4,487 5,745 Pending Water Right Applications WRIA 10 – Puyallup Watershed

WRIA 10 - Number of MU Use Requests Puyallup 7 Number of DM Use Requests 4 New Applications 21 Number of IR Use Requests 0 Change 6 Oldest Application Date September 4, 2001 Applications Existing Water 1,194 Right Certificates Existing Water 46 Right Permits Existing Water 2,636 Right Claims

MU = Municipal DM = Multiple Domestic IR = Irrigation 17 Pending Water Right Applications WRIA 11 – Nisqually Watershed

WRIA 11 - Number of MU Use Requests Nisqually 6 [2 in Pierce Co.]

Number of DM Use Requests New Applications 75 38 [29 in Pierce Co.] (53 in Pierce Co.) Change 9 Number of IR Use Requests 17 [15 in Pierce Co.] Applications (8 in Pierce Co.) Existing Water 982 Oldest Application Date December 9, 1991 Right Certificates Existing Water 36 Right Permits Existing Water 3,155 Right Claims Pending Water Right Applications WRIA 12 – Clover-Chambers Watershed

WRIA 12 Clover-Chambers Number of MU Use Requests 5 Number of DM Use Requests New Applications 9 2 Oldest Application Date July 21, 1997 Change 0 Applications Existing Water 546 Right Certificates Existing Water 25 Right Permits Existing Water 2,131 Right Claims

19 Pending Water Right Applications WRIA 15 – Kitsap Watershed (Pierce Co.)

Number of MU Use Requests WRIA 15 – Kitsap 7 (Pierce County Number of DM Use Requests 10 only) Number of IR Use Requests 3 New Applications 22 Oldest Application Date (160 in Kitsap Co.) July 14, 1997 Change 0 Applications Existing Water 684 Right Certificates Existing Water 51 Right Permits Existing Water 2,997 Right Claims

2 0 Summary of New and Change Applications in Pierce County

A total of 105 NEW Water Right Applications and 14 CHANGE Water Right Applications

WRIA 10 WRIA 11* WRIA 12 WRIA 15* New 21 53 9 22 Applications Change 6 8 0 0 Applications NEW MU 7 2 5 7 Apps. New DM 4 29 2 10 Apps. New IR Apps. 0 15 0 3

* = Pierce County Only WRIAs 10, 11, 12 and 15 also have Instream Flow Regulations

An instream flow rule is a stream flow regime set in a state regulation. The Legislature has directed Ecology through state law to protect and preserve instream resources. One of the ways Ecology fulfills this mandate is to set instream flows in regulation (rule).

WRIAs 10, 11, 12 and 15 have “older” (pre-2000) instream flow regulations:

WAC 173-510, WAC 173-511, WAC 173-512 and WAC 173-515 Puyallup Nisqually Clover/Chambers Kitsap Which: •Establish Instream Flow levels of the main river and several basin tributaries. •Each of the instream flow levels are considered water rights and are “senior” to any junior water rights established after the instream flow regulation. •Strongly limits additional surface water withdrawals from lakes and streams in the specific basin. •Requires groundwater withdrawals to demonstrate for no impact on streamflows and if impact, to mitigate for this impact. •Exempt wells for domestic, stock, industrial and non-commercial irrigation of <1/2 acre are “generally” exempt from the regulation.

22 WA Courts Historically Provided the Legal Clarity regarding Water Law and Water Rights In WA

Chapter 90.03 RCW (Surface Water Law) is 99 years old. Chapter 90.54 RCW (Groundwater Law) is 71 years old.

A few of the significant WA State Supreme Court Decisions:

Campbell & Gwinn (2002) – limited groundwater exemption to a single development (i.e. – one cannot put 16 exempt wells on 16 lots – all are part of a single development).

Postema (2000) – established that “hydraulic continuity” exists between surface water and groundwater and even a “de-minimus” impairment is impairment.

Swinomish v. Ecology (2013) – Ecology cannot use “overriding consideration of public interest” (OCPI) when establishing reservations in instream flow regulations

Cornelius (2014) – reaffirmed municipal water users can grow into their water rights without fear or relinquishment

Foster v. Yelm (2015) – Ecology cannot use “overriding consideration of public interest” (OCPI) or allow for “out-of- kind” mitigation when issuing water right permits in watersheds with instream flow regulations. Mitigation has to be water-for-water (or “in-kind”), even for a deminimus impairment.

Hirst v. Whatcom County (pending) – While this is a Growth Management Act (GMA) case about what a County must do to comply with GMA with respect to protecting , the Court’s decision could have implications for permit exempt wells statewide.

23 Water Rights and Water Wells in this area of the Puyallup Valley

Approximately 65 square miles inside red area

24 Puyallup Valley Water Rights

Claim Certificate Certificate Total Permits Permits New New Change s s s Certificates Applicatio Applicati Applicati ns ons ons

Surface Ground Ground Surface Surface Ground Source Water Water Water Water Water Water Source Source Source Source Source Source

1,186 376 229 605 4 1 0 5 10 – GW 1 - SW

In this area in red, There is a total of 2378 there are 372 Claims water wells in this 65 with irrigation (IR) square mile area. and 433 Certificates with IR indicated as a beneficial use

25 Water Right Claims – Which is valid?

According to state law, the validity of a Water Right Claim can only be determined by a Superior Court, valid Claims should either pre-date the surface water code of 1917 (Chapter 90.03 RCW) or the groundwater code of 1945 (Chapter 90-44 RCW) 26 Ecology Rainwater Collection Policy

27 Best Approach for Those Interested in Agricultural Production • Purchase small acreage with an exempt well (or install an exempt well) and use the groundwater from that well under the “Industrial” groundwater permit exemption (See Slide #8). This is a limit of 5,000 gallons per day.

• If need additional water, consider collecting rainwater. See Ecology Policy 1017 (See Slide #22).

• If you need additional water, • (a) apply for a water right - this will take years, cost money (see Slide #11) and cannot be “stacked” on top of your existing Industrial exemption. (In other words, if you obtained a water right, your exemption would become part of the water right.)

OR

• (b) purchase a farm with existing water rights for irrigation

28 Additional Informatio n

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