In a much-anticipated ruling, a state judge has struck down key parts of a water law that would have allowed drastically expanded water use for development. The law, passed in 2003, redefined private developers as municipalities and retroactively allowed developers and municipalities to increase their use of water under old water rights at the expense of other water rights holders and rivers and streams. Earthjustice, representing individual water right holders, conservation groups, and commercial fishermen, joined a coalition of Indian tribes to challenge the law as unconstitutional.
“As passed this law would give away millions of gallons of water every day to municipalities and developers without any regard to how that might impact others already using water in the same watershed,” said Tom Geiger of the Washington Environmental Council. “Conservation and efficiency, not unaccountable giveaways, are essential to address our future water needs.”
Judge Jim Rogers of the King County Superior Court held that two sections of the 2003 law were unconstitutional. The first section redefined “municipal water suppliers” to include many private developers, granting them the special rights under the water code previously reserved to public entities. The second section revived water right certificates that had been issued to developers and cities based on the size of the pumps and pipes of their water systems rather than on the actual amount of water they used. In 1998, the Washington Supreme Court invalidated those certificates, but in 2003 the legislature reinstated them.
“With snow packs shrinking in the Cascades and salmon runs declining throughout the state, Washington faces major water problems,” said Shaun Goho, the Earthjustice attorney who argued the case. “This law only made matters worse.”
“Municipal water rights, like every other water right, are subject to legal tests intended to protect senior water users and the environment,” said Rachael Paschal Osborn of the Center for Environmental Law and Policy. “With this ruling, we can finally evaluate paper water rights under these legal tests and ensure orderly and responsible development of state water resources.”
The ruling will likely be appealed. As Judge Rogers recognized in his oral ruling, it is likely that the Washington State Supreme Court will ultimately decide the constitutionality of the statute.
Earthjustice represents plaintiffs Joan Burlingame, Scott Cornelius, Lee Bernheisel, Pete Knutson, Puget Sound Harvesters, Washington Environmental Council, Sierra Club, and the Center for Environmental Law and Policy in this case.