Washington Water Access and Water Rights Overview (19-WA-a(1))
Under Washington law, the waters of Washington belong collectively to the public and as such are not owned by any individual or group. The Department of Ecology manages the state’s water resources and grants individuals or groups the right to use state waters under Washington – Wash. Rev. Code §§ 90.03 et seq., Water Code. Initially, after the enactment of the 1917 Water Code, Washington’s permit system only applied to surface water; however, the 1945 Groundwater Act and its 1973 amendments RCW 90.44 Regulation of public groundwaters have, for the most part, brought groundwater under the same prior appropriation rules as surface water. The Department of Ecology issues water right permits through its regional offices in Lacey, Bellevue, Yakima, and Spokane.
Hydropower projects require access to water, which in many instances will require a water right or other approval by Department of Ecology. Washington uses a prior appropriation system for the distribution of both surface water and groundwater rights in which water users receive the right to use water on a “first in time, first in right” basis. RCW § 90.03.010. However, federally recognized Indian Tribes in Washington State have recognized senior instream flow rights based on established tribal treaty rights or pending tribal claims. These instream flows must be maintained to ensure sufficient stream flows for fish. Washington State Department of Ecology Instream Flow Laws and Rules Webpage. The Washington State Governor’s Office of Indian Affairs has compiled a list of federally recognized Indian Tribes in the Washington State Tribal Directory. Washington State does not have state-recognized tribes. Washington State Tribal Directory.
Water Access and Water Rights Overview Process
19-WA-a.1 – Calculate Project Need
The developer will need to contact a water engineer/consultant to calculate the amount of water the project (e.g. power generation, reservoir fill, pumped storage, construction, dust suppression, etc.) requires.
19-WA-a.2 – Locate Appropriate Source of Water Supply
The developer, with the assistance of the water engineer/consultant, must locate an appropriate source of water supply based on the project’s water requirement.
19-WA-a.3 – Is the Water Supply from a Municipal Supply or Other Governmental Supplier?
If the developer will obtain the water from a local municipality, the developer may purchase water from the municipality through a tap fee, and in most cases continue with the project without obtaining a water right permit. In addition, the developer may obtain water from a water district, water sanitation district, metropolitan district, or a water conservancy district.
19-WA-a.4 – Is the Water Supply from a Lease Supplier with an Already Permitted or Decreed Water Right?
If the developer will obtain water through a short-term lease supplier with an already decreed water right, the developer may be able to continue with the project without obtaining a new water right.
19-WA-a.5 to 19-WA-a.7 – Is the Water Supply a Previously Decreed Water Right that Requires a Transfer or Change of an Existing Water Right?
If the source of the water supply is a previously decreed water right that the developer will need to change or transfer for a new use, purpose or point of diversion the developer will need to initiate the transfer or change of water right process. For more information, see:
19-WA-a.8 to 19-WA-a.9 – Will the Water Supply Require a New Water Right?
If the source of water supply will require a new water right, the developer must initiate the New Water Right Permit Process (19-WA-b). A new water right permit may be required regardless of whether the source of water supply is a surface water (e.g., lakes, rivers, streams, and springs) or groundwater supply.
The consumptive and non-consumptive classifications of water are important when assessing the quantity of water allocated. Washington Department of Ecology – Water Resources Program Policy, Consumptive and Non-Consumptive Water Use. A consumptive water use causes “…diminishment of the source at the point of appropriation.” “A water use may be consumptive to a specific reach of a stream when water is diverted, used, or returned to the same source at a point downstream not in close proximity to the point of diversion. The stream reaches between the point of withdrawal and point of discharge is the by-pass reach.” Washington Department of Ecology – Water Resources Program Policy, Consumptive and Non-Consumptive Water Use. Surface water is non-consumptive when there is no diversion from the water source or diminishment of the source. Additionally, when water is diverted and returned immediately to the source at the point of diversion following its use in the same quantity as diverted and meets water quality standards for the source, the water use is classified as non-consumptive. Washington Department of Ecology – Water Resources Program Policy, Consumptive and Non-Consumptive Water Use.
Water use in a hydroelectric project when water is not diverted away from the natural confines of the river or stream channel (e.g., run-of-river projects) is considered non-consumptive use. Washington Department of Ecology – Water Resources Program Policy, Consumptive and Non-Consumptive Water Use.
For more information, see:
19-WA-a.10 to 19-WA-a.11– Does the Project Require the Construction of an Impoundment and Storage of Water?
A hydropower developer must obtain a Reservoir Permit from the Washington Department of Ecology to construct a impoundment and store water, for beneficial use, in a reservoir more than ten (10) acre-feet in volume or if it is ten (10) or more feet deep at its deepest point. This Reservoir Permit threshold includes any “…proposed impounding structure which obstructs any stream or watercourse and to any excavation and/or dike built off-channel from any stream or watercourse. A Reservoir Permit also applies to “…any impounding structure, which will increase the depth or capacity of any existing reservoir.” W.A.C. § 508-12-260; Application for a Reservoir Permit, at p. 4. For more information, see:
19-WA-a.12 to 19-WA-a.14 –Will the Project Divert, Obstruct, or Change the Natural Flow or Bed of Any State Water?
A hydropower developer may need to obtain a Hydraulic Project Approval from the Washington Department of Fish and Wildlife for “any construction or performance of work that uses, diverts, obstructs, or changes the natural flow or bed of any fresh water or saltwater in the state…” W.R.C. §77.55.011(11); W.R.C. §77.55.021; W.A.C. §220-660-010. For more information, see:
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- Washington – Wash. Rev. Code §§ 90.03 et seq., Water Code
- RCW 90.44 Regulation of public groundwaters
- Washington – Wash. Admin. Code §§ 508-12 et seq., Administration of Surface and Groundwater Codes
- Washington – Wash. Rev. Code §§ 77.55 et seq., Construction Projects in State Waters
- Washington – Wash. Admin. Code §§ 220-660 et seq., Hydraulic Code Rules