Protection of Individual Rights for Property & Water can be found in State Laws (RCWs)

April 9, 2011

Washington State - Pearl Rains Hewett, an individual citizen, has been researching the Washington State laws to learn what protection can be afforded to owners of private property, and the use of water on their own land. She forwarded the information to the Clallam Citizens Alliance for Property Rights' (CAPR) president, Karl Spees, who in turn shared them with us to share with our readers.

Following is a list of the laws (RCWs) she's found:

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RCW 90.03.040
Eminent domain — Use of water declared public use.

The beneficial use of water is hereby declared to be a public use, and any person may exercise the right of eminent domain to acquire any property or rights now or hereafter existing when found necessary for the storage of water for, or the application of water to, any beneficial use, including the right to enlarge existing structures employed for the public purposes mentioned in this chapter and use the same in common with the former owner, and including the right and power to condemn an inferior use of water for a superior use. In condemnation proceedings the court shall determine what use will be for the greatest public benefit, and that use shall be deemed a superior one: PROVIDED, That no property right in water or the use of water shall be acquired hereunder by condemnation for irrigation purposes, which shall deprive any person of such quantity of water as may be reasonably necessary for the irrigation of his land then under irrigation to the full extent of the soil, by the most economical method of artificial irrigation applicable to such land according to the usual methods of artificial irrigation employed in the vicinity where such land is situated. In any case, the court shall determine what is the most economical method of irrigation. Such property or rights shall be acquired in the manner provided by law for the taking of private property for public use by private corporations.
[1917 c 117 § 4; RRS § 7354. Formerly RCW 90.04.030.]
Notes:

Eminent domain by corporations: Chapter 8.20 RCW.

Application -- 2009 c 332: "Except for section 14 of this act, this act applies only to adjudications initiated after July 26, 2009." [2009 c 332 § 21.]
Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001.
Additional powers and duties enumerated -- Payment for from reclamation account: RCW 89.16.055.
Application of RCW sections to specific proceedings: RCW 90.14.200.
Schedule of fees: RCW 90.03.470.

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RCW 90.03.400
Crimes against water code — Unauthorized use of water.

(1)(a) The unauthorized use of water to which another person is entitled or the willful or negligent waste of water to the detriment of another, is a misdemeanor.

(b) For instances of the waste of water under this subsection, the department may alternatively follow the sequence of enforcement actions as provided in RCW 90.03.605.

(2) The possession or use of water without legal right shall be prima facie evidence of the guilt of the person using it.

(3) It is also a misdemeanor to use, store, or divert any water until after the issuance of permit to appropriate such water.
[2003 1st sp.s. c 15 § 2; 2003 c 53 § 418; 1917 c 117 § 40; RRS § 7392. Formerly RCW 90.32.010.]
Notes:

Reviser's note: The effective date of 2003 c 53 § 418 is July 1, 2004. However, 2003 c 53 § 418 was amended by 2003 1st sp.s. c 15 § 2 which has an effective date of September 9, 2003. Consequently, the effective date of this section is September 9, 2003.
Intent -- Effective date -- 2003 c 53: See notes following RCW 2.48.180.
Punishment of misdemeanor when not fixed by statute: RCW 9.92.030.

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RCW 90.03.090
Water master's power of arrest.

The water master shall have the power, within his or her district, to arrest any person in the act of violating any of the provisions of this chapter and to deliver such person promptly into the custody of the sheriff or other competent officer within the county and immediately upon such delivery the water master making the arrest shall, in writing and upon oath, make complaint before the proper district judge against the person so arrested.
[1987 c 202 § 250; 1917 c 117 § 12; RRS § 7362. Formerly RCW 90.08.030.]
Notes:

Intent -- 1987 c 202: See note following RCW 2.04.190.

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RCW 90.03.110
Determination of water rights — Petition — Statement and plan.

(1) Upon the filing of a petition with the department by a planning unit or by one or more persons claiming the right to any waters within the state or when, after investigation, in the judgment of the department, the public interest will be served by a determination of the rights thereto, the department shall prepare a statement of the facts, together with a plan or map of the locality under investigation, and file such statement and plan or map in the superior court of the county in which said water is situated, or, in case such water flows or is situated in more than one county, in the county which the department shall determine to be the most convenient to the parties interested therein. Such a statement shall:

(a) Either (i) identify each person or entity owning real property situated within the area to be adjudicated but outside the boundaries of a city, town, or special purpose district that provides water to property within its service area; (ii) identify all known persons claiming a right to the water sought to be determined; or (iii) identify both; and

(b) Include a brief statement of the facts in relation to such water, and the necessity for a determination of the rights thereto.

(2) Prior to filing an adjudication under this chapter, the department shall:

(a) Consult with the administrative office of the courts to determine whether sufficient judicial resources are available to commence and to prosecute the adjudication in a timely manner; and

(b) Report to the appropriate committees of the legislature on the estimated budget needs for the court and the department to conduct the adjudication.
[2009 c 332 § 1; 1987 c 109 § 72; 1917 c 117 § 14; RRS § 7364. Formerly RCW 90.12.010.]
Notes:

RCW 89.16.055.
Application of RCW sections to specific proceedings: RCW 90.14.200.

Schedule of fees: RCW 90.03.470.

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RCW 90.03.470
Schedule of fees.

The fees specified in this section shall be collected by the department in advance of the requested action.

(1) For the examination of an application for a permit to appropriate water, a minimum fee of fifty dollars must be remitted with the application. For an amount of water exceeding one-half cubic foot per second, the examination fee shall be assessed at the rate of one dollar per one hundredth cubic foot per second. In no case will the examination fee be less than fifty dollars or more than twenty-five thousand dollars. No fee is required under this subsection (1) for an application filed by a party to a cost-reimbursement agreement made under RCW 90.03.265.

(2) For the examination of an application to store water, a fee of two dollars for each acre foot of storage proposed shall be charged, but a minimum fee of fifty dollars must be remitted with the application. In no case will the examination fee for a storage project be less than fifty dollars or more than twenty-five thousand dollars. No fee is required under this subsection (2) for an application filed by a party to a cost-reimbursement agreement made under RCW 90.03.265.

(3)(a) For the examination of an application to transfer, change, or amend a water right certificate, permit, or claim as authorized by RCW 90.44.100, 90.44.105, or 90.03.380, a minimum fee of fifty dollars must be remitted with the application. For an application for change involving an amount of water exceeding one cubic foot per second, the total examination fee shall be assessed at the rate of fifty cents per one hundredth cubic foot per second. For an application for change of a storage water right, the total examination fee shall be assessed at the rate of one dollar for each acre foot of water involved in the change. The fee shall be based on the amount of water subject to change as proposed in the application, not on the total amount of water reflected in the water right certificate, permit, or claim. In no case will the examination fee charged for a change application be less than fifty dollars or more than twelve thousand five hundred dollars.

(b) The examination fee for a temporary or seasonal change under RCW 90.03.390 is fifty dollars and must be remitted with the application.

(i) An application to process a change relating to donation of a trust water right to the state;

(ii) An application to process a change when the department otherwise acquires a trust water right for purposes of improving instream flows or for other public purposes;

(iii) An application filed with a water conservancy board according to chapter 90.80 RCW or for the review of a water conservancy board's record of decision submitted to the department according to chapter 90.80 RCW; or

(iv) An application filed by a party to a cost-reimbursement agreement made under RCW 90.03.265.

(d) For a change, transfer, or amendment involving a single project operating under more than one water right, including related secondary diversion rights, or involving the consolidation of multiple water rights, only one examination fee and one certificate fee are required to be paid.

(4) The fifty-dollar minimum fee payable with the application shall be a credit to the total amount whenever the examination fee totals more than fifty dollars under the schedule specified in subsections (1) through (3) of this section and in such case the further fee due shall be the total computed amount, less the amount previously paid. Within five working days from receipt of an application, the department shall notify the applicant by registered mail of any additional fees due under subsections (1) through (3) of this section.

(5) The fees specified in subsections (1) through (3) of this section do not apply to any filings for emergency withdrawal authorizations or temporary drought-related water right changes authorized under RCW 43.83B.410 that are received by the department while a drought condition order issued under RCW 43.83B.405 is in effect.

(6) For applying for each extension of time for beginning construction work under a permit to appropriate water, for completion of construction work, or for completing application of water to a beneficial use, a fee of fifty dollars is required. These fees also apply to similar extensions of time requested under a change or transfer authorization.

(7) For the inspection of any hydraulic works to insure safety to life and property, a fee based on the actual cost of the inspection, including the expense incident thereto, is required except as follows: (a) For any hydraulic works less than ten years old, that the department examined and approved the construction plans and specifications as to its safety when required under RCW 90.03.350, there shall be no fee charged; or (b) for any hydraulic works more than ten years old, but less than twenty years old, that the department examined and approved the construction plans and specifications as to its safety when required under RCW 90.03.350, the fee charged shall not exceed the fee for a significant hazard dam.

(8) For the examination of plans and specifications as to safety of controlling works for storage of ten acre feet or more of water, a minimum fee of ten dollars, or a fee equal to the actual cost, is required.

(9) For recording an assignment either of a permit to appropriate water or of an application for such a permit, a fee of fifty dollars is required.

(10) For preparing and issuing all water right certificates, a fee of fifty dollars is required.

(11) For filing and recording a formal protest against granting any application, a fee of fifty dollars is required. No fee is required to submit a comment, by mail or otherwise, regarding an application.

(12) For filing an application to amend a water right claim filed under chapter 90.14 RCW, a fee of fifty dollars is required.

(13) An application or request for an action as provided for under this section is incomplete unless accompanied by the fee or the minimum fee. If no fee or an amount less than the minimum fee accompanies an application or other request for an action as provided under this section, the department shall return the application or request to the applicant with advice as to the fee that must be remitted with the application or request for it to be accepted for processing. If additional fees are due, the department shall provide timely notification by certified mail with return receipt requested to the applicant. No action may be taken by the department until the fee is paid in full. Failure to remit fees within sixty days of the department's notification is grounds for rejecting the application or request or canceling the permit. Cash shall not be accepted. Fees must be paid by check or money order and are nonrefundable.

(14) For purposes of calculating fees for groundwater filings, one cubic foot per second shall be regarded as equivalent to four hundred fifty gallons per minute.

(15) Eighty percent of the fees collected by the department under this section shall be deposited in the state general fund. Twenty percent of the fees collected by the department under this section shall be deposited in the water rights tracking system account established in RCW 90.14.240.

(16) Except for the fees relating to the inspection of hydraulic works and the examination of plans and specifications of controlling works provided for in subsections (7) and (8) of this section, nothing in this section is intended to grant authority to the department to amend the fees in this section by adoption of rules or otherwise.
[2005 c 412 § 2; 1993 c 495 § 2; 1987 c 109 § 98; 1965 ex.s. c 160 § 1; 1951 c 57 § 5; 1929 c 122 § 8; 1925 ex.s. c 161 § 2; 1917 c 117 § 44; RRS § 7399. Formerly RCW 90.04.040.]

Notes:

Findings -- Intent--2005 c 412: "The legislature finds that the fees associated with various actions of the department of ecology relating to the processing and administration of water rights are outdated and are insufficient even to recover the cost of handling the funds submitted. The legislature also finds that water right processing fees are currently collected at three different stages of the water rights process and that reducing the number of instances of fee collection to two stages of the process would increase efficiency and reduce administrative costs. The legislature further finds that several current statutory fees are archaic or are otherwise covered by other general statutes, including the state's public disclosure laws. The legislature therefore intends to update and modernize the fee schedule associated with water right-related actions of the department of ecology." [2005 c 412 § 1.]

Findings -- 1993 c 495: "The legislature finds that a water right confers significant economic benefits to the water right holder. The fees associated with acquiring a water right have not changed significantly since 1917. Water rights applicants pay less than two percent of the costs of the administration of the water rights program. The legislature finds that, since water rights are of significant value, water rights applicants should contribute more to the cost of administration of the water rights program.

The legislature also finds that an abrupt increase in water rights fees could be disruptive to water rights holders and applicants. The legislature further finds that water rights applicants have a right to know that the water rights program is being administered efficiently and that the fees charged for various services relate directly to the cost of providing those services.

Therefore, the legislature creates a task force to review the water rights program, to make recommendations for streamlining the application process and increasing the overall efficiency and accountability of the administration of the program, and to return to the legislature with a proposal for a fee schedule where the fee levels relate clearly to the cost of services provided." [1993 c 495 § 1.]

Reviser's note: 1993 c 495 § 3 created a water rights task force that expired June 30, 1994.

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RCW 90.14.044

Existing water rights not impaired.

The provisions of chapter 435, Laws of 1985 authorizing the acceptance of a petition for certification filed during the period beginning on July 28, 1985, and ending on midnight, September 1, 1985, shall not affect or impair in any respect whatsoever any water right existing prior to July 28, 1985.

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RCW 90.14.140
"Sufficient cause" for nonuse defined — Rights exempted. (Effective until June 30, 2019.)

(1) For the purposes of RCW 90.14.130 through 90.14.180, "sufficient cause" shall be defined as the nonuse of all or a portion of the water by the owner of a water right for a period of five or more consecutive years where such nonuse occurs as a result of:

(a) Drought, or other unavailability of water;

(b) Active service in the armed forces of the United States during military crisis;

(d) The operation of legal proceedings;

(e) Federal or state agency leases of or options to purchase lands or water rights which preclude or reduce the use of the right by the owner of the water right;

(f) Federal laws imposing land or water use restrictions either directly or through the voluntary enrollment of a landowner in a federal program implementing those laws, or acreage limitations, or production quotas;

(g) Temporarily reduced water need for irrigation use where such reduction is due to varying weather conditions, including but not limited to precipitation and temperature, that warranted the reduction in water use, so long as the water user's diversion and delivery facilities are maintained in good operating condition consistent with beneficial use of the full amount of the water right;

(h) Temporarily reduced diversions or withdrawals of irrigation water directly resulting from the provisions of a contract or similar agreement in which a supplier of electricity buys back electricity from the water right holder and the electricity is needed for the diversion or withdrawal or for the use of the water diverted or withdrawn for irrigation purposes;

(i) Water conservation measures implemented under the Yakima river basin water enhancement project, so long as the conserved water is reallocated in accordance with the provisions of P.L. 103-434;

(j) Reliance by an irrigation water user on the transitory presence of return flows in lieu of diversion or withdrawal of water from the primary source of supply, if such return flows are measured or reliably estimated using a scientific methodology generally accepted as reliable within the scientific community; or

(k) The reduced use of irrigation water resulting from crop rotation. For purposes of this subsection, crop rotation means the temporary change in the type of crops grown resulting from the exercise of generally recognized sound farming practices. Unused water resulting from crop rotation will not be relinquished if the remaining portion of the water continues to be beneficially used.

(2) Notwithstanding any other provisions of RCW 90.14.130 through 90.14.180, there shall be no relinquishment of any water right:

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RCW 90.14.071
Failure to file claim waives and relinquishes right.

Except as provided in *section 5 of this act or as exempted from filing by RCW 90.14.041, any person claiming the right to divert or withdraw waters of the state as set forth in RCW 90.14.041, who fails to file a statement of claim as provided in RCW 90.14.041, 90.14.043, or 90.14.068 and in RCW 90.14.051 and 90.14.061, shall be conclusively deemed to have waived and relinquished any right, title, or interest in said right.
[1997 c 440 § 3; 1969 ex.s. c 284 § 16.]
Notes:

*Reviser's note: Section 5 of this act was vetoed by the governor.
Severability -- 1969 ex.s. c 284: See note following RCW 90.48.290.

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RCW 90.03.010
Appropriation of water rights — Existing rights preserved.

The power of the state to regulate and control the waters within the state shall be exercised as hereinafter in this chapter provided. Subject to existing rights all waters within the state belong to the public, and any right thereto, or to the use thereof, shall be hereafter acquired only by appropriation for a beneficial use and in the manner provided and not otherwise; and, as between appropriations, the first in time shall be the first in right. Nothing contained in this chapter shall be construed to lessen, enlarge, or modify the existing rights of any riparian owner, or any existing right acquired by appropriation, or otherwise. They shall, however, be subject to condemnation as provided in RCW 90.03.040, and the amount and priority thereof may be determined by the procedure set out in RCW 90.03.110 through 90.03.240.
[1917 c 117 § 1; RRS § 7351. Prior: 1891 p 127 § 1. Formerly RCW 90.04.020.]

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RCW 90.03.110
Determination of water rights — Petition — Statement and plan.

(1) Upon the filing of a petition with the department by a planning unit or by one or more persons claiming the right to any waters within the state or when, after investigation, in the judgment of the department, the public interest will be served by a determination of the rights thereto, the department shall prepare a statement of the facts, together with a plan or map of the locality under investigation, and file such statement and plan or map in the superior court of the county in which said water is situated, or, in case such water flows or is situated in more than one county, in the county which the department shall determine to be the most convenient to the parties interested therein. Such a statement shall:

(b) Include a brief statement of the facts in relation to such water, and the necessity for a determination of the rights thereto.

(2) Prior to filing an adjudication under this chapter, the department shall:

(a) Consult with the administrative office of the courts to determine whether sufficient judicial resources are available to commence and to prosecute the adjudication in a timely manner; and

According to Pearl, this is the law RCW 90.58.100 that won the recent lawsuit for Pacific Legal Foundation.

PROTECTION FOR PRIVATE PROPERTY
RCW 90.58.100

(6) Each master program shall contain standards governing the protection of single family residences and appurtenant structures against damage or loss due to shoreline erosion. The standards shall govern the issuance of substantial development permits for shoreline protection, including structural methods such as construction of bulkheads, and nonstructural methods of protection. The standards shall provide for methods which achieve effective and timely protection against loss or damage to single family residences and appurtenant structures due to shoreline erosion. The standards shall provide a preference for permit issuance for measures to protect single family residences occupied prior to January 1, 1992, where the proposed measure is designed to minimize harm to the shoreline natural environment.

According to Pearl, at the Jan 26, 2010 SMP focus group meeting, Lake Sutherland property owners spoke out about the water level on the Lake. They mentioned more then once, the continuing battle they were having with fisheries and the DOE to keep Indian Creek outflow open.

This is the RCW 90.24.010 I found that people on Lake Sutherland can use to protect their property.

If nobody knows that a law exists, how can they use it?

Pearl says, "I am sad to say that in the last 2 1/2 months I have only found three laws that protect private property owners".

RCW 90.24.010

Petition to regulate flow — Order — Exceptions.

Ten or more owners of real property abutting on a lake may petition the superior court of the county in which the lake is situated, for an order to provide for the regulation of the outflow of the lake in order to maintain a certain water level therein. If there are fewer than ten owners, a majority of the owners abutting on a lake may petition the superior court for such an order. The court, after notice to the department of fish and wildlife and a hearing, is authorized to make an order fixing the water level thereof and directing the department of ecology to regulate the outflow therefrom in accordance with the purposes described in the petition. This section shall not apply to any lake or reservoir used for the storage of water for irrigation or other beneficial purposes, or to lakes navigable from the sea.

[1999 c 162 § 1; 1985 c 398 § 28; 1959 c 258 § 1; 1939 c 107 § 2; RRS § 7388-1.]

Notes:

Effective date -- 1985 c 398: "Sections 28 through 30 of this act shall take effect January 1, 1986." [1985 c 398 § 31.]

Lake and beach management districts: Chapter 36.61 RCW.

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PRIVATE PROPERTY PROTECTION

RCW 90.58.030

Definitions and concepts.

(h) "Wetlands" means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands.

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Protection of Individual Rights for Property & Water can be found in State Laws (RCWs)

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