Municipal Water Law

Sidewalk irrigation, Spokane region.

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Dewatering the Spokane River.

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Municipal Water Law (HB 1338)

In 2003, CELP, in its role as Washington's Water Watchdog, voiced strong concerns regarding a bill, ESSHB 1338, that was moving through the state legislature. The bill, known as the Municipal Water Law, or more realistically the Massive Water Loss bill (MWL), sought to create "certainty and flexibility" for municipal water suppliers when planning for future water needs. Unfortunately, MWL instead created a situation that has placed individuals and rivers in jeopardy.

In order to fully understand the problems with MWL a short lesson in Washington water law is necessary. Washington's water law is based on the doctrine of prior appropriation. This means that the first person to appropriate water has priority over others who come later and want to use water from the same source. Priority dates are attached to water rights to show the hierarchy among water users. During water shortages, the person who first appropriated the water (senior right holder) may take his full allotment of water even if doing so will leave the second appropriator (junior right holder) high and dry. It is obvious that this scheme could lead to abuse if the senior right holder claimed more water than he actually used, and hoarded his "paper" water rights in speculation of a water shortage.

To eliminate water right speculation, the law limits the a person's water right to the amount of water actually put to beneficial use, not the amount of water shown on a water right document. However, an exception to this rule was carved out for traditional (governmental) municipal water suppliers, to allow them more time to grow into the full use of their water rights as cities grew. Generally, beneficial use in this context is the amount of water which is reasonably put to use for a specific purpose without wasting it.

Instream flows are considered a beneficial use of water, and minimum instream flow levels are set by the Department of Ecology for river systems have their own priority dates. Unfortunately, because most instream flow levels were set in the 1970s and 1980s, a river's instream water rights are junior to most of the earlier water rights established for municipalities and other entities. If Ecology guessed wrong and issued more water rights in a watershed than the available water budget would allow (and, unfortunately, Ecology too often does over-appropriate (see its map of 16 fish-critical basins), water use by the more senior out of stream users would take priority over maintaining sufficient water for instream flows.

MWL turned the foundations of Washington water law upside down. The Massive Water Loss bill gives special privileges to a certain group of private water purveyors and retroactively exempts them from the beneficial use requirement. This means more water in the hands of private individuals and less water in Washington's rivers and streams for the public.

The Massive Water Loss bill accomplishes this dramatic makeover in just two simple steps. First, it redefines a "municipal water supplier" as "an entity that supplies water for municipal water supply purposes." "Municipal water supply purpose" is then defined to include a beneficial use of water "for residential purposes through fifteen or more service connections or for providing residential use of water for a nonresidential population that is, on average, at least twenty-five people for at least sixty days a year." This means that many private entities never before considered governmental entities - such as mobile home parks, campgrounds, businesses supplying housing to seasonal workers, and private residential developers - are now "municipal water suppliers."

Second, MWL retroactively exempts this particular group of water right holders from the beneficial use requirement. These new "municipal water suppliers" now enjoy the exemption from relinquishment previously reserved only for traditional municipal water suppliers. Therefore, a mobile home park that has the capacity to use 100 acre-feet of water per year, but has never used more than 50 acre-feet per year, is now free to pump the additional 50 acre-feet of water per year - and, without public notice or oversight, use it in new places or for additional purposes. Obviously, this will have a detrimental effect on water availability for junior water right holders, including established instream flows.

Last but not least, the Massive Water Loss bill allows all "municipal water suppliers" to take the water out of the original place of use and use it elsewhere - even in another watershed or basin. All they need do is simply amend the description of their "service area" in documents periodically filed with the Department of Health. (Not Ecology, the agency that traditionally oversees water resource management.) Moreover, this change in place of use does not require that the change avoid impairing existing water rights. Now you see why this legislation should be called the Massive Water Loss bill.

CELP objected to these provisions while the bill was in session, but was assured that the actual implementation of the bill would not lead to the abuses we feared. It has been three years since the Massive Water Loss bill was enacted. Over this period, CELP has observed that this bill provides a select group of private individuals a windfall supply of the public's water, and that features of the bill which were ostensibly designed to offset the bill's environmental ill effects are insufficient. CELP feared that enactment of the MWL could unjustifiably spell Massive Water Losses; we are sad to report that this prediction appears to be coming true.

See how CELP is taking action by joining with others to petition Washington's Attorney General to strike down the unconstitutional portions of the law.

Click for more information:

• Sierra Club’s Spokane River Project section on 1338
• Municipal Water Law FAQs
• MWL Numbers.
• Case study: Spokane River

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