The Washington State Supreme Court today upheld a controversial water law that will likely encourage sprawl and water speculation. The ruling also strongly suggested the high court justices will entertain specific challenges if people claim to be individually harmed.
The high court justices upheld the 2003 Municipal Water Law definition of “municipalities” to include private developers—allowing them to keep the rights to as much water as their systems can handle, even if they haven’t historically used that water. The court also held that the Municipal Water Law did not retroactively validate extinct water rights. The high court justices noted in their decision that everyone, including municipalities, must demonstrate that they are putting water to beneficial use before obtaining a valid water right.
The decision moves the State in a direction that may exacerbate water shortages by allowing growing cities and developers to monopolize and speculate on water rights and future water use, at the expense of farmers, others with current water rights, and native fish habitat.
“Speculation in our public water resources will not be accepted, “ said Earthjustice attorney Janette Brimmer. “We will be watching carefully to ensure that the State is true to its word and fulfills its obligations to always require beneficial use.”
Earthjustice, representing individual water rights holders, conservation groups, and commercial fishermen, joined with a coalition of Indian Tribes to challenge the 2003 Municipal Water Law as unconstitutional on its face.
In 2008, a King County Superior Court judge agreed with Earthjustice and the Tribes and struck down key parts of the 2003 Municipal Water Law. The state Supreme Court ruling today reverses the lower court decision.
Because the 2003 Municipal Water Law allows development based on the size of water systems as opposed to the actual amount of water used, it encourages developers to build more houses in rural areas and removes incentives for water conservation, said Rachael Osborn, executive director of the Center for Environmental Law and Policy.
“The state high court ruling is troubling because water in our state is already over-allocated,” explained Osborn. “Property owners are already seeing the levels of their wells drop and streams that native salmon need are running dry.”
One such case is pending in Whitman County Superior Court involving a local resident who has seen the level of his well drop as Washington States University cashes in on old water rights for a new golf course, Osborn said.
Earthjustice represents individuals Joan Burlingame, Scott Cornelius, Lee Bernheisel, and Pete Knutson, fishermen with Puget Sound Harvesters, and conservation groups Washington Environmental Council, Sierra Club, and the Center for Environmental Law and Policy. These parties coordinated with six Indian tribes, the Lummi, the Makah, the Quinault, Squaxin Island, the Suquamish, and the Tulalip.