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«December 2002 Publication No. 02-11-019 This report is available on the Department of Ecology website at: For ...»

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2002 Report to the Legislature

Streamlining the Water Rights General Adjudication

Procedures

December 2002

Publication No. 02-11-019

This report is available on the Department of Ecology website at:

http://www.ecy.wa.gov/biblio/0211019

For additional copies of this publication, please contact:

Department of Ecology

Publications Distributions Center

P.O. Box 47600

Olympia, WA 98054-7600

Email: ecypub@ecy.wa.gov

Phone: (360) 407-7472 Refer to publication number 02-11-019 The Department of Ecology is an equal opportunity agency and does not discriminate on the basis of race, creed, color, disability, age, religion, national origin, sex, marital status, disabled veteran’s status, Vietnam-Era veteran’s status or sexual orientation.

If you have special accommodation needs or require this document in an alternative format, please contact Christine Corrigan, Water Resources Program, at (360) 407-6607 (voice) or 711 (TTY) or 1-800-833-6388 (TTY).

For questions regarding this report, contact M. Stella Satter, Water Resources Program, (360) 407-6653.

2002 Report to the Legislature Streamlining the Water Rights General Adjudication Procedures

Prepared by:

Department of Ecology Water Resources Program PO Box 47600 Olympia WA 98504-7600 and Office of the Attorney General PO Box 40100 Olympia, WA 98054-0100 December 2002 Publication No. 02-11-019 Printed on recycled paper

STREAMLINING ADJUDICATIONS

A Report To The Washington State Legislature December 2002 Pursuant to Chapter 371, Laws of 2002 (Engrossed Substitute Senate Bill 6387) the Department of Ecology and Office of the Attorney General provide this report to the Washington Legislature on ways to streamline the water rights general adjudication procedures. The report is presented

in three main parts, and includes an Executive Summary and Introduction:

Executive Summary (p2) Introduction (p3) PART 1: Overview of Water Rights General Adjudications in Washington State (p5) A. Current Adjudication Process (p5) B. Types of Water Rights Which May Be Adjudicated (p6) C. Overview of Past and Current Water Rights Adjudications (p6) D. Advantages and Disadvantages of the Current Process (p7) PART 2: Recommendations for Streamlining the Washington State General Water Rights Adjudication Process (p10)

–  –  –

PART 3: Appendices (p18) A. Active, Completed, Incomplete and Petitioned Adjudications (p19) B. Western States Adjudication Conference Questionnaire (p29) C. Distinguishing Features of Adjudications in Other Western States (p33)

–  –  –

This report on streamlining the water rights general adjudication process was prepared by the Department of Ecology and the Office of the Attorney General, pursuant to Chapter 371, Laws of 2002 (Engrossed Substitute Senate Bill 6387).

Water is a limited resource with increasing demands on it. The need for reliable information on the extent, validity and relative priorities of existing water rights is essential for water resource management and planning. General adjudications are the only way to determine this information comprehensively and with certainty. Only some 20% of the state’s surface area has been (or is in the process of being) adjudicated; most of the adjudications have dealt only with surface water.

Ways to facilitate the overall adjudication process for the remaining 80% of the state’s land area, and nearly all of its ground water, is crucial.

Four key goals were identified for streamlining the adjudication process, supported by five objectives determined to be the best ways to reach those goals (see page 10). This report offers the following nine recommendations to meet the goals and objectives of streamlining the

adjudication process:

1. Within the adjudication process, have Ecology make the tentative determinations on water rights and have claimants present fully documented claims at the outset.

2. Independent of the adjudication process, create a new process for Ecology to validate registered water right claims.

3. Allow limited special adjudications.

4. Have Ecology provide comprehensive background information early in the adjudication proceedings.

5. Authorize pre-filed written testimony.

6. Utilize information technology more effectively.

7. Develop aerial photograph interpretation expertise.

8. Expand the use of mediation.

9. Develop guidance on how to maintain and document a water right.

The recommendations are both administrative and legislative in nature. Each will require legislative modification, additional funding or both. They focus primarily on the procedures and the resources associated with Ecology’s role in an adjudication.

–  –  –

General adjudications of water rights are an essential part of water management in Washington State. Adjudications are currently the only definitive way to determine the extent and validity of existing water rights from a particular source within a geographic area -- information that is at the foundation of all water resource planning and management.





Water is a limited resource in high demand. Access to adequate supplies of water is required to meet the growing needs of communities, businesses, agriculture and others, while still protecting the environment. Changes and transfers of existing water rights continue to be one of the main ways by which water is acquired to meet these various needs. But it is difficult to make change and transfer decisions in locations where water rights have not been judicially confirmed.

Water markets are expected to become a means of meeting future water demands. Successful water markets rely on changes and transfers of existing water rights. Certainty regarding the extent and validity of existing water rights resulting from adjudications will support successful water markets.

Of increasing concern for water resources planning and management is the need to clarify water rights established under federal law, namely, federal and Indian reserved water rights. Federal and Indian reserved water rights are among the water rights that place current and future demands on many Washington watersheds. Many of these rights have not yet been judicially confirmed, quantified, or prioritized. (For more information, see Federal and Indian Reserved Water Rights, A Report to the Washington State Legislature by the Office of the Attorney General, October 2002.) The uncertainty surrounding the existence, quantity, and priority of these rights in a particular watershed gives rise to an overall uncertainty among all water users in the watershed. A general adjudication is the primary means for determining these federal and Indian reserved water rights.

Delaying the adjudication of existing water rights will only lead to further complexities, as the individuals with personal knowledge of historic water uses in a case become increasingly less available. Additionally, as the land on which the water right is used is subdivided, there will be a larger number of claimants. Historic, aging paper records that provide evidence become more fragile and may disappear as they are lost, misplaced, or destroyed.

With all these demands on the adjudication process, determining effective ways to streamline it is essential. This report begins, in Part One, with a description of Washington State’s current adjudication procedures, the different types of water rights that may be adjudicated, the state’s adjudication history, and the perceived strengths and weaknesses of the current system.

Part Two presents the goals and objectives established for streamlining the current adjudication process, and then identifies nine specific streamlining recommendations. The recommendations are both administrative and legislative in nature, focusing primarily on the procedures and the resources associated with Ecology’s role in an adjudication. In Part Three, the appendices include several lists of all current and historic adjudications in Washington, responses to a survey

–  –  –

Putting this study in its broader context Chapter 371 also calls for the creation of a task force and the completion of three other studies, in conjunction with this Streamlining the Water Rights General Adjudication Procedures report.

The Water Right Dispute Resolution Task Force is a task force led by the Attorney General and comprised of legislators, judicial officers and agency officials. The Task Force was directed to study judicial and administrative alternatives for resolving water disputes. They are expected to review the findings presented by all four studies, as well as other information, to develop recommendations for water disputes resolution. The recommendations will be submitted to the Legislature at the end of 2003.

The three other reports look at specific components of water dispute resolution and water

resources management:

• Federal and Indian Reserved Rights. This study focuses on issues associated with federal and Indian reserved water rights, the approaches taken by other states to such issues and their results. The study also explores the methods for addressing such issues including, but not limited to, administrative, judicial, or other methods, and implementation and funding requirements. (Submitted to Legislature October 2002.)

• Improving the Administration of Ecology’s Water Right Records. This study focuses on recommendations for improving the administration of water rights ownership information and integrating this information with real property ownership records. Real property ownership information is critical in the adjudication process so that notifications and summons are properly served. (Submitted to Legislature October 2002.)

• Trans-boundary Report. This study focuses on the feasibility of conducting negotiations with other states and Canada regarding use of shared water bodies. (Expected to be submitted to Legislature January 2003.) Recommendations from these studies and this streamlining adjudications report may overlap and complement each other. It is expected that the results of the studies will be considered by the Water Disputes Task Force as well as the Legislature.

–  –  –

OVERVIEW OF WATER RIGHTS GENERAL ADJUDICATIONS IN WASHINGTON STATE

A. Current Adjudication Process Washington has an administrative permitting and regulatory water management system;

however, the adjudication procedure is judicial in nature. A general adjudication of water rights in Washington State is conducted according to the procedures provided in the Water Code, codified at RCW 90.03.105 through RCW 90.03.245 and RCW 90.44.220. It is a court case that determines the validity, extent, and relative priorities of existing water rights, for a specific basin, surface water body, or ground water body. A general adjudication serves only to confirm existing rights; it may not be used to lessen, enlarge, or modify existing water rights.

The Washington water rights system is designed to have superior courts conduct general adjudications to determine all the water rights within the specific watersheds and geographic areas throughout the state. The Water Code (Chapter 90.03 RCW) and the Superior Court Civil Rules govern the adjudication process. The process begins when one or more members of the public or a watershed planning unit petitions Ecology to initiate an adjudication, or when Ecology initiates an adjudication based on its own investigation. RCW 90.03.105 -.110. To commence the adjudication, Ecology is required to file a statement of facts (including a list of all known persons claiming water rights in the basin), and map or plan related to the water source and associated water rights in the appropriate superior court. RCW 90.03.110. After the case is initiated through this filing, the court directs Ecology, in its capacity as plaintiff, to serve summons on all persons and entities who might want to assert water rights in the proceeding.

RCW 90.03.120 -.130.

After summons are served, claimants must file statements with the court to assert their claims to water rights. RCW 90.03.140. After claims are filed by the water users, the court is required to refer the proceeding to a referee appointed by Ecology who will hold hearings to take testimony and consider evidence on the asserted water rights. As exemplified in the current Yakima River Basin adjudication, in a large case involving more than 1,000 defendants including the United States, the superior court judge may conduct evidentiary hearings. RCW 90.03.160 -.170. After the hearings are conducted, the referee or judge will prepare a report of recommended water rights that is subject to an exceptions process. RCW 90.03.190 -.200. This exceptions process allows both the department and claimants to ask the superior court to make changes to the rulings contained in a referee’s or judge’s report.

When an adjudication is completed, the court issues a decree including a schedule that sets forth the confirmed water rights and their attributes, including a date of priority that is the basis for any subsequent regulation. RCW 90.03.200. Based on the final decree, Ecology is directed to issue certificates to all those whose water rights are confirmed. RCW 90.03.240. The certificates may be recorded in the appropriate auditor's office.

Page 5B. Types of Water Rights Which May Be Adjudicated

Adjudications in Washington are complicated by the fact that there are so many different types of recognized water rights under state law. Two key state statutes require permitting of water rights: Chapter 90.03 RCW, the Water Code (enacted in 1917), and Chapter 90.44 RCW, Regulation of Public Ground Water (enacted in 1945). State law recognizes five different types

of water rights:

• pre-1917 surface water rights

• post-1917 permitted or certificated surface water rights

• pre-1945 ground water rights

• post-1945 permitted or certificated ground water rights

• ground water withdrawals that are exempt from permitting requirements.



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