WASHINGTON INSTREAM WATER RIGHT LAW AND POLICY
Converting Water Rights Into Trust Water for Fish
Washington Department of Ecology
QLEs Meeting
March 21, 2003


Overview Water Right Concept

  • A Water Right is:
    “A right to the beneficial use of a reasonable quantity of public water for a beneficial purpose during a certain period of time that occurs at a certain place”

  • Beneficial use is
    • Beneficial use is the basis, the measure, and the limit of a water right
    • A beneficial use is perfected through the actual use of water
    • No right exists beyond the extent that a beneficial use has actually and legally been made

  • Definitions from WA State Supreme Court cases

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Water Rights Permits

  • Ecology must determine:
    • Use is beneficial
    • Water is available
    • Existing water uses not impaired
    • Not detrimental to public interest

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Water for Fish

  • Fairly recent concept
  • Instream flow is a water right set by rule with priority date of rule adoption- exception
  • Established instream flow rights are junior to most existing water rights and may exist only on paper

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Trust Water Right

  • "Trust Water Right" is:
    • Legal mechanism-transfer authorized under RCW's 90.42 & 90.38
    • TWR retains priority date of original right and not relinquished
    • TWR can be obtained from "net water savings" and "voluntary transfers"
    • TWR cannot impair existing water rights (including return flows)
    • TWR is held by Ecology

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Transfer of Water Right to TWR

  • Transfer is based on variety of factors:
    • Type of transaction-purchase? Lease? temporary? permanent? partial? total?
    • Status of the water right-claim? Certificate? Adjudicated?
    • Evidence that water right has been in use within last 5-years
    • Place, time and purpose of use and point of diversion
    • Historic beneficial use-consumptive and reasonable conveyance
    • Location of other legally authorized diversions

  • Impairment:
    • Change will not increase instantaneous or annual quantity
    • Source will not change-except ground water in hydraulic continuity with surface water
    • Change will not expand the water right
    • Change will not increase consumptive use
    • Change is not contrary to public interest

  • Quantification – done on case by case basis and requires site specific information
    • Consumptive use
    • Return flows

  • Consider crop type and water use, number of acres, historical cropping patterns, and reasonably efficient practices

  • Determine primary and secondary reach
    • With few exceptions (e.g. primary reach) only consumptive use is put into trust water and paid for
    • Quantification done prior to any expenditure of funds

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Matrix: Guidance for Processing Acquired Water Rights into Trust Water for Instream Flows
(See footnotes for exceptions to the guidance contained in the table.)
Permanent acquisition of all or part of a water right
90.42.080 (1)(a)
Short term Lease of five years or less of all or portion of a water right
90.42.080(1)(a)
Long term lease of over 5 years of all or portion of a water right
90.42.080(1)(a)
Water right holder donates all or portion of a water right to assist instream flow on permanent or temporary basis
90.42.080(1)(a)
Conveyance of all or portion of net water saving resulting from improvements financed by State or federal funds. Saved water is conveyed through water right transfer, lease contract or other binding agreement (RCW 90.42.030) – can be temporary (at least 10 years) if funded through CC Irrigation Efficiency Grant – 90.42.030(1)
Yes 90.03.380 applies – Not exempt under 90.42.080(5) Yes 90.03.380 applies – Not exempt under 90.42.080(5) Yes 90.03.380 applies – not exempt under 90.42.080(5) NO application for donation under 90.42.080(1)(b).
To get info for evaluation will use a "trust water right form" – 90.42.080(5)
NO change application, and NO fees – 90.42.040(7).
Contract is required.
To collect info will use "Trust water Right Form"
Yes notice requirement in 90.03.380 applies. It must be done in accordance with 90.03.280 NO upfront notice for short term lease (exempt until exercised – see Exercise of TW below (90.42.040(8)) Yes notice requirement in 90.03.380 applies. It must be done in accordance with 90.03.280 NO upfront notice for donation under 90.42.080 (1) (b). But required first time TW is exercised 90.42.040(5) Yes notice is required under 90.42.040(5). This specific provision trumps general exemption from 90.03.380
Yes, evaluation is required 90.03.380 Yes – evaluation is required
90.03.380/td>
Yes – evaluation is required
90.03.380
Yes, evaluation is required to meet the requirements of 90.42.080(4) Evaluation is discretionary – Evidence of a valid water right may be required under 90.42.030(2)
For partial purchase – annual consumptive quantity is average of 2 highest years of use within most recent 5 year period of continuous beneficial use per 90.03.380. For purchase of the total right – annual consumptive quantity is the highest use within the last 5-year of continuous use. Annual consumptive use is highest use within last 5 years. Total leased plus remaining is not to exceed highest use per 90.42.080(8). For temporary acquisitions, the full quantity of water diverted or withdrawn is placed in the trust program, per 90.42.080(9) Annual consumptive use is highest use within last 5 years. Total leased plus remaining is not to exceed highest use per 90.42.080(8). For temporary acquisitions, the full quantity of water diverted or withdrawn is placed in the trust program, per 90.42.080(9) Annual consumptive use is highest use within last 5 year period. Donated amount plus remaining shall not exceed highest use – 90.42.080(4). For temporary acquisitions, the full quantity of water diverted or withdrawn is placed in the trust program, per 90.42.080(9). Net water saving is determined by the state and water right holder – 90.42.030(3) and is done in accordance with the "Guidelines" – 90.42.030(2), 90.42.020(2).
Yes upfront analysis. Must be No impairment, or reduction of water delivered, or water supply (including return flows) – 90.03.380 No upfront analysis for short term lease, until the first time TW is excercised – 90.42.040(8) & 90.42.040(4) Yes, upfront impairment analysis under 90.03.380 No upfront analysis for donation under 90.42.080 (1)(b) Yes upfront analysis. Must be No impairment, or reduction of water delivered, or water supply (including return flows) – 90.42.020(2). Special provisions apply to TW from and within irrigation district – 90.42.030(5) and (6)
Report of exam or findings of Fact Findings of Fact or letter – 90.42.040(2) Finding of Facts – 90.42.040(2) Findings of Facts – 90.42.040(2) Contract or Findings of Fact – 90.42.030
TW: WR certificate to the State is issued
If partial purchase WR holder is issued a superseding certificate or certificate of change for claims
90.42.040(2)
Letter or Findings of Fact – for TW and water right holder – 90.42.040(2 Findings of Facts for TW and water right holder – 90.42.040(2) Permanent – certificate to the State for TW and Superseding certificate or certificate of change (for claims) to water right holder for remaining right.
Temporary – Findings of Facts for both – 90.42.040(2)
Permanent – Certificate to State for TW and Superceding certificate or certificate of change to WR holder
Temporary – Contract or Findings of Fact – 90.42.040(2)
Only if no impairment to existing water rights and public interest. 90.42.040(4), 90.03.380, & 90.42.070 Notice is required the first time a short-term lease is exercised. A water right holder may ask Ecology to review an impairment claim. Ecology's decision to alter or not alter the TW based on the impairment claim is appealable. 90.42.040(8), 90.42.080(8), 90.42.070 Only if no impairment to existing water rights and public interest. A water right holder may ask Ecology to review an impairment claim. Ecology's decision to alter or not alter the TW based on the impairment claim is appealable. 90.42.040(4), 90.42.080(8), 90.42.070 Notice is required the first time the donated TW right is exercised. A water right holder may ask Ecology to review an impairment claim. Ecology's decision to alter or not alter the TW based on the impairment claim is appealable. 90.42.040(8), 90.42.080(4), 90.42.070 Only if no impairment to existing water rights and public interest. 90.42.020, 90.42.040(4), 90.42.070
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Example of Evaluation

  • Purchase:
    • Standard application and notice
    • Extent and validity based on historical beneficial use
    • Quantification different for partial and total purchase
    • Total purchase based on the highest use within last 5-year continuous use, partial is average of 2 highest of most recent 5-year
    • Impairment analysis done upfront prior to transfer
    • Legal document is issued to the state for instream flow
    • Protected from junior water right holders

  • Short Term Lease
    • Standard application but no upfront notice
    • Quantification highest of last 5-year period of continuous use
    • No impairment analysis prior to water is place into trust
    • Notice and impairment done when trust water right is exercised (meaning call for the water or enforce the twr)-No impairment
    • TWR is in the form of finding of facts or letter with effective period and end date
    • End of lease water right (consumptive and non-consumptive) reverts to right holder

  • Conserved water publicly funded
    • No application-contract
    • Evaluation of validity is discretionary
    • New water saving is determined by Ecology and water right holder
    • Impairment done prior to transfer and must not reduce water diverted by others
    • Special consideration apply to TW within irrigation districts

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Quick Find:

Overview Water Right Concept

Water Rights Permits

Water for Fish

Trust Water Right

Transfer of Water Right to TWR

Matrix: Guidance for Processing Acquired Water Rights into Trust Water for Instream Flows

Example of Evaluation