Water Rights: Let the Buyer Beware.

November 4, 2014

Water rights issues are cropping up with increasing frequency as water becomes a diminishing commodity. In the Puget Sound area this is a somewhat ironic concept, as flooding seems to have been on the uptick and the drizzle for which the area is renown has certainly not disappeared. Flooding however is often attributed to logging and development which causes rainwater to become surface water, rather than groundwater, available through wells. The expansion of the population beyond areas served by water systems has created a proliferation of wells, drawing from largely unknown underground estuaries. This increased burden on the supply of water diminishes the quantity of water available to wells, sometimes with disastrous results.

Care must be taken when purchasing water rights or acquiring property with water rights. The value of property is often dependent on water rights but too often property is purchased without a thorough investigation of those water rights. Scrutiny of a title report may give the buyer false confidence in the availability of water.

In verifying the validity of a water source the inquirer enters into the Byzantine realm of Washington water rights, which defy easy explanation. Broadly speaking there are three levels of inquiry. First water systems must be permitted by the State Department of Ecology. However, there are certain exemptions from state permitting requirements and water systems that predate the water code of 1917 need not be permitted. Roughly 166,000 systems claim to have originated before 1917 but very few claims, if any, have been adjudicated. Next the county determines compliance with health requirements and conducts routine inspections. This is usually a fairly straight forward inquiry for the purchaser.

The last common level of inquiry relates to the assignment of water rights. The right to draw water is assignable. As to any water source that is off-site, the validity of the transfer of water rights must be verified. If there is a well on site, all documents transferring rights to others, or allocating rights of use, must be verified. When creating a joint-use well a great deal of difficulty can be avoided by carefully delineating each user’s rights and duties. This warrants as much care as the determination of the rights and regulations governing a home owners’ association.

Water law

June 16, 2008

You probably read last week the the King County Superior Court struck down portions of the Washington State legislature’s 2003 water rights law. This was just a local reverberation of a pressing national issue, one that you will be hearing more and more about. There is a shrinking supply of water, as demand increases. The apportionment of water pits various private interests against each other and private interests andaginst public interest. It does not seem fair that we should have so little sun and still experience issues about the availability of water. But in King County homes on wells have had to be abandoned because the well runs dry. In Pierce County the there is a lot of talk about the contamination of wells by salt water.

Surprisingly (to me) this has become a partisan issue. Washington is a politically odd state in a number of different ways. Owing to the population imbalance between east and west, Washington is generally speaking progressive in political orientation. There is a wide cleft though between the sentiments of the citizens and the actions of their legislature. Perhaps because of citizen indifference, the legislature here is driven by special interests so that our laws on the whole are far from progressive.

Nonetheless it is interesting to see how water rights issues are being fought out in other states.  A number of states are attempting to expand the the public trust doctrine to include potable water from any source.  Historically this doctrine has been limited by the courts of navigable waterways, which are deemed to be held in trust for the public, giving a high degree of accountability to public officials who manage them.  Courts generally have been resistant to expanding the doctrine.  Most battles over the extension of this doctrine are now being waged in the various state legislatures.