Washington Supreme Court Upholds Municipalities’ Water Rights


In a long-awaited decision, the Washington Supreme Court unanimously upheld portions of the state's water law that allow certain developments and municipalities water rights based on how much their water systems can handle, rather than their actual use of water. The decision in Lummi Indian Nation v. State removes uncertainty for municipalities and developers. However, tribes and environmental groups are concerned the decision will harm endangered fish species and other water right holders, as well as stress an already over appropriated water supply.

The water law provisions have been the subject of extensive litigation for more than 10 years. This issue began with a practice by the Washington Department of Ecology ("Ecology") of granting municipalities water rights based on the capacity of their water systems (i.e., how much the pumps and pipes could handle), instead of actual water use. Ecology's policy differed from how water rights had historically been granted, which involved applicants only gaining water rights once they had put the water to beneficial use, and their right was only good for the amount of water they were able to use. For example, under the prior practice, if a farmer applied for a water right of one million gallons per year to irrigate his/her crops, the farmer had to actually use the water for that purpose before his/her water right fully vested. In addition, if the farmer's water right allowed him/her to use one million gallons per year, yet only 100,000 gallons were used, he/she risked losing rights to the remaining 900,000 gallons of water.

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