Water rights law modified in court

OLYMPIA – A King County judge on Wednesday struck down parts of a controversial 2003 state water law, throwing into question the water-system expansion plans of potentially hundreds of developers and private systems across the state.

“It’s a pretty big deal that’s going to prevent further harm to junior water right holders, in-stream flows and aquifers,” said Patrick Williams, an attorney for the Center for Environmental Law and Policy. CELP was one of several environmental groups and six Western Washington Indian tribes challenging the law. A junior water right holder is someone with a more recent water claim.

In an oral ruling, Judge Jim Rogers said lawmakers went too far five years ago when they classified private water systems and developers as local governments. That allows them to bypass long-standing use-it-or-lose it laws designed to prevent people from claiming more water rights than they can use.

Although some environmentalists worry about the extensive unused water rights held by Spokane and other cities, attorneys on both sides said the judge’s decision shouldn’t affect cities or other municipal water systems.

To allow cities to expand, they have long been exempt from the use-it-or-lose-it rules faced by most water users, said Dave Williams, a water expert with the Association of Washington Cities.

“We can grow into it,” he said of a water right. “We don’t have to pump it all to keep it as a water right in good standing.”

Among those involved in the case: Washington State University, which says its water rights – one dates to the 1930s – are crucial to supply the campus and its new golf course. Patrick Williams said Wednesday’s ruling doesn’t seem likely to affect those rights, although environmentalists have challenged the school’s water demand in a separate case.

Lawmakers’ 2003 change in the state water law was prompted by the case of George Theodoratus, a Skagit County developer who in 1973 applied for water rights for a 253-lot development along the Skagit River. More than two decades later, according to court documents, 93 of the lots had water hookups. After several extensions, the state Department of Ecology invoked the use-it-or-lose it law to limit Theodoratus’ water rights. The state Supreme Court upheld that decision in 1998. Theodoratus was a private developer, not a city, the justices pointed out.

So lawmakers decided to retroactively change the law so people such as Theodoratus were treated like cities.

But the problem with that, according to Spokane environmental attorney Rachael Paschal Osborn, is that in many parts of Washington, state officials have granted more water rights than there is water. If the city of Spokane and other local “paper” water rights holders were to suddenly build pumps and pipes and use all their allowed water, she said, the Spokane River would quickly run dry.

So it was a big mistake, Osborn and other critics say, for lawmakers to change the rules to make it easier for people such as Theodoratus to claim water rights for which they have no reasonable use. CELP attorney Patrick Williams said the goal of the court challenge is partly to spur lawmakers to encourage conservation “instead of speculative land grabs.”

Williams said at least “several hundred” developers are sitting on water claims they cannot use.

He maintains that it’s a mistake to view Wednesday’s ruling as costing them those water rights “because we feel they never really had it to begin with.”

Hal Schlomann, head of the state association of water and sewer districts, said he thinks the number of affected people is small.

“If they’re using the water, they should be OK,” he said. But if they’re holding a large water right that’s not being used, he said, the unused part may be in jeopardy.

There was no immediate reaction to the ruling from the Building Industry Association of Washington, a politically vocal group that backed Theodoratus in the 1998 case. Similarly, the state attorney general’s office – which defended the law – said only that it disagreed that any sections of the law are unconstitutional.

Both sides – as well as the judge – have indicated that the case is likely to be appealed.

Richard Roesler can be reached at (360) 664-2598 or by e-mail at richr@spokesman.com.