Water Rights and Water Law 101 for Small Agricultural Producers

Transcription

1 Water Rights and Water Law 101 for Small Agricultural Producers Pierce County Farm Forum Workshop April 28, 2016 Mike Gallagher, Water Resources Program Southwest Regional Office

2 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 Surface Water 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 property right. 2

3 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 tax 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

4 What are the Key Laws relating to Water Rights? RCW Surface Water Code of 1917 RCW Ground Water Code of

5 Groundwater 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

6 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

7 How is water used in Washington? beneficial uses Recreation Stockwatering Municipal Irrigation Industrial Wildlife Propagation Fish Propagation Power

8 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

9 Stages of a Water Right Application Stage Application form and $50 fee submitted to Ecology Purpose Establishes intent to appropriate Permit Proof of Appropriation Certificate Ecology (or hired consultant for Ecology approval) processes application Report of Examination. All elements of the 4 Part Test need to be met before a Permit issued, or denied 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, based on the information Proof of Appropriation and the certified water right examiners' field inspection (if one is conducted). The certificate cannot exceed the amount of water that has actually been put to beneficial use Authorization to develop Permit will include a development schedule, which specifies the dates by which you must: 1) begin construction of your water system, 2) complete construction of your water system, and 3) put the water to full use, as described in your permit. Water put to beneficial use Perfection of water right The certificate is recorded at the auditor's office in the county where the project is located, and at Ecology.

10 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 irrigation (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 land 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: 10

11 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: 11

12 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: 12

13 WA has 62 major watersheds, or WRIA s, and each has their own story Pierce County WRIAs 13

14 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

15 Department of Ecology Regions G4-/S4- G3-/S3- G1-/S1- G2-/S2-

16 Region Central Region Eastern Region Current Number of Pending Water Right Applications Statewide Change Applications April 15, 2016 Change Applications June 30, 2008 New Applications April 15, ,962 2, ,062 Northwest ,143 1,505 Southwest TOTAL 940 1,343 4,487 5,745 New Applications June 30, 2008

17 Pending Water Right Applications WRIA 10 Puyallup Watershed WRIA 10 - Puyallup New Applications 21 Change Applications Existing Water Right Certificates Existing Water Right Permits Existing Water Right Claims 6 1, ,636 MU = Municipal DM = Multiple Domestic IR = Irrigation Number of MU Use Requests 7 Number of DM Use Requests 4 Number of IR Use Requests 0 Oldest Application Date September 4,

18 Pending Water Right Applications WRIA 11 Nisqually Watershed WRIA 11 - Nisqually New Applications 75 (53 in Pierce Co.) Change Applications Existing Water Right Certificates Existing Water Right Permits Existing Water Right Claims 9 (8 in Pierce Co.) ,155 Number of MU Use Requests 6 [2 in Pierce Co.] Number of DM Use Requests 38 [29 in Pierce Co.] Number of IR Use Requests 17 [15 in Pierce Co.] Oldest Application Date December 9, 1991

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

20 2 0 Pending Water Right Applications WRIA 15 Kitsap Watershed (Pierce Co.) WRIA 15 Kitsap (Pierce County only) New Applications 22 (160 in Kitsap Co.) Change Applications Existing Water Right Certificates Existing Water Right Permits Existing Water Right Claims ,997 Number of MU Use Requests 7 Number of DM Use Requests 10 Number of IR Use Requests 3 Oldest Application Date July 14, 1997

21 Summary of New and Change Applications in Pierce County A total of 105 NEW Water Right Applications and 14 CHANGE Water Right Applications New Applications Change Applications NEW MU Apps. New DM Apps. WRIA 10 WRIA 11* WRIA 12 WRIA 15* New IR Apps * = Pierce County Only

22 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 , WAC , WAC and WAC 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

23 WA Courts Historically Provided the Legal Clarity regarding Water Law and Water Rights In WA Chapter RCW (Surface Water Law) is 99 years old. Chapter 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-ofkind 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 water resources, the Court s decision could have implications for permit exempt wells statewide. 23

24 Water Rights and Water Wells in this area of the Puyallup Valley Approximately 65 square miles inside red area 24

25 Puyallup Valley Water Rights Claim s Certificate s Certificate s Total Certificates Permits Permits New Applicatio ns New Applicati ons Change Applicati ons Surface Water Source Ground Water Source Ground Water Source Surface Water Source Surface Water Source Ground Water Source Source 1, GW 1 - SW There is a total of 2378 water wells in this 65 square mile area. In this area in red, there are 372 Claims with irrigation (IR) and 433 Certificates with IR indicated as a beneficial use 25

26 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 RCW) or the groundwater code of 1945 (Chapter RCW) 26

27 Rainwater Collection Policy 27

28 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

29 Additional Informatio n 29