Washington Transfer or Change of Water Right (19-WA-c)
Much of Washington’s public waters have been accounted for through water right claims, permits, or certificates. As a result, many individuals seeking water rights try to acquire existing water rights already in use or change the use of a current water right they already hold. Certain elements of a water right cannot be changed, including the instantaneous withdrawal rate or total annual quantity. Washington Department of Ecology – Changing or Transferring an Existing Water Right. However, other elements of a water right, such as the place of use, point of diversion or withdrawal, purpose of use, and season of use can be changed with the approval of the Department of Ecology under Wash. Rev. Code §§ 90.03 et seq. and Wash. Rev. Code § 90.44 et seq. (groundwater specific provisions) or through an approved local Water Conservation Board with Department of Ecology approval under Wash. Rev. Code § 90.80 et seq. Washington Department of Ecology – Changing or Transferring an Existing Water Right.
Water rights are generally represented by three different types of water right documents:
- A Water Right Claim is a claim to a water right for a beneficial use which pre-dates the water permitting system. The validity of a claim has not been confirmed through administrative or judicial processes.
- A Water Right Permit is the first step towards securing a perfected water right. A water right is perfected when all of the terms and conditions associated with it have been fully accomplished. Under a permit, a developer is allowed to start construction of the water system and begin using water. Permits are generally required if the developer plans to withdraw water from either surface waters or groundwaters.
- A Water Right Certificate is issued when the Department of Ecology confirms that the water right being developed is perfected. A Certificate of Water Right is the final legal record of a water right and, once issued, the water right is considered appurtenant, or attached to the land on which the water is used.
The circumstances in which a water right can be transferred or changed (hereafter transfer and change are used interchangeably) are very complex and a developer should contact the Department of Ecology or an attorney for specific situations. Generally, a water right cannot be transferred if the transfer would cause injury to other water right holders. Wash. Rev. Code § 90.03.380. Additionally, a surface water right must be “perfected” (put to beneficial use) before the water right becomes eligible for a transfer, while a groundwater right does not need to be perfected to change the point of withdrawal or place of use. Wash. Rev. Code § 90.44.100 .Additionally, it is worth noting that Washington State has a backlog of applications for transfers and changes in water right permits and offers a cost reimbursement program to expedite the permitting process. The developer should contact the Department of Ecology for more information. Washington Department of Ecology – Water Right Change Webpage.
Transfer or Change of Water Right Process
19-WA-c.1 – Conduct Historical Use Analysis of Water Right to be Changed; Present Terms and Conditions to Prevent Injury
When the source of water supply is a previously decreed water right that the developer seeks to transfer, the developer will need to have a water engineer or consultant conduct a historical use analysis of the water right and present terms and conditions to prevent injury. A transfer is allowed only if it does not increase the “annual consumptive quantity” of the water used under the water right. Wash. Rev. Code § 90.03.380(1). “Annual consumptive quantity” means the estimated or actual annual amount of water diverted pursuant to the water right, reduced by the estimated annual amount of return flows, averaged over the two years of greatest use within the most recent five-year period of continuous beneficial use of the water right. Wash. Rev. Code §90.03.380(1).
19-WA-c.2 to 19-WA-c.4 – Is the Water Proposed for Transfer Currently Diverted or Would It Be Diverted Within a County with a Water Conservancy Board?
If the water proposed for transfer is currently diverted or would be diverted within a county with an approved water conservancy board, the developer may elect to file an application with the water conservancy board instead of the Department of Ecology. Wash. Rev. Code § 90.80.070(1). For more information, see:
19-WA-c.5 to 19-WA-c.6 – Water Right Pre-Application Consultation Form
The Department of Ecology advises developers to use the pre-application process before submitting an application for a transfer or change of an existing water right. If the developer wishes to meet with the Department of Ecology’s permitting staff to discuss the water project, the developer should complete and submit Washington Department of Ecology - Water Right Pre-Application Consultation Form (“Pre-Application Consultation Form”) to the Department of Ecology at wrPreApp@ecy.wa.gov. The Department of Ecology advises applicants who cannot e-mail the form to mail the completed form to the appropriate regional office.
The Pre-Application Consultation Form should include, at minimum, the following:
- Developer’s contact information;
- A description of the proposed project, including the project’s location;
- Identification of the source of the water used; and
- A copy of the maps depicting the project location.
After receiving the Pre-Application Consultation Form the Department of Ecology will contact the developer to schedule a pre-application meeting or phone call if the developer cannot travel to the regional office. The developer should be prepared to discuss the proposal in detail and ask any question the developer has about the water right transfer application process. During the meeting the Department of Ecology will provide the developer with information about:
- Water availability challenges and opportunities;
- The status of pending applications in the area;
- Anticipated processing timelines;
- Application requirements, fees, and information needs;
- Water resources regulations specific to the area;
- Alternatives to filing water right applications;
- Qualifications for priority processing;
- Cost reimbursement options; and
- The Department of Ecology contacts.
Additionally, the Department of Ecology recommends that the developer bring any professional staff (e.g., engineers, hydrogeologists, attorneys) that may be necessary to address technical questions. Washington Department of Ecology – Apply to Change or Transfer a Water Right or Claim Webpage.
19-WA-c.7 – Application for Change/Transfer of a Water Right
The developer must complete the Application for Change/Transfer of a Water Right (“Change/Transfer of Water Right Application”) and submit the completed application along with a non-refundable minimum filing fee of $50.00 to the Department of Ecology. Wash. Rev. Code §90.03.380(1). The Change/Transfer of Water Right Application must include, at minimum, the following:
- The applicant;
- The existing water right;
- The existing and proposed point(s) of diversion/withdrawal;
- The existing and proposed purpose of use;
- The existing and proposed place of use; and
- Other information relevant to the transfer or change in water right.
The Change/Transfer of Water Right Application must also include the signatures of the developer, the current water right holder, the landowner of the existing place of use, and the landowner of the proposed place of use (if applicable).
19-WA-c.8 to 19-WA-c.10 – Review Application for Completeness
The Department of Ecology reviews the application for completeness and accepts the application if complete. If additional fees are required, the Department of Ecology will notify the developer at this time. See Water Right Fee Estimator website. The Department of Ecology will assign the Change/Transfer of Water Right Application an application number and notify the developer of receipt of the application. Water Rights Processing Procedures, p. 5.
19-WA-c.11 to 19-WA-c.12 – Send Legal Notice to the Developer for Publication
Once a Transfer or Change in Water Right Application is complete and accepted, the Department of Ecology will send the developer a legal notice of the application to publish in an approved newspaper with general circulation in the county/ counties where the water is or will be withdrawn, stored, or used. Wash. Rev. Code § 90.03.280; Water Rights Processing Procedures, p. 6. The developer must publish the notice once a week for two consecutive weeks. The notice includes:
- The basic facts of the request for a water right; and
- Information regarding the 30-day protest period for any member of the public who believes that the proposed change in water use would impair other uses of the water resource. The 30-day protest period does not begin until the last day that the legal notice is published).
After final publication of the notice, the developer must send the Department of Ecology an original, notarized Affidavit of Publication from the publishing newspaper. The Department of Ecology cannot take action on the Transfer or Change in Water Right Application until after the developer submits the Affidavit.
19-WA-c.13 – Comment on Application
Members of the public have 30 days to comment on or protest the Transfer or Change in Water Right Application by submitting written comments to the Department of Ecology. Water Rights Processing Procedures, p. 7.
19-WA-c.14 – Review Application and Public Comments
The Department of Ecology reviews the complete Transfer or Change in Water Right Application and any written comments from the 30 day comment period. Water Rights Processing Procedures, p. 7.
19-WA-c.15 – Conduct Field/Technical Investigation
The Department of Ecology conducts an investigation to validate the information in the Transfer or Change in Water Right Application. The investigation includes gathering additional information to evaluate the existing and proposed use of the water right. The Department of Ecology investigation may also include a field examination of the proposal.
In addition to the completed Application for Change/Transfer of a Water Right, the developer may be asked to send supplementary documentation on the proposed transfer of water right including:
- Evidence that the water right has been put to continuous use (this may include pump records, meter readings, electrical records, photographs, or affidavits from neighbors);
- Maps of the property included in the legal description of the changes and all proposed points of diversion/withdrawal; and
- Copies of agreements to share or transfer water rights between neighbors.
19-WA-c.16 to 19-WA-c.17 – Report of Examination (ROE)
The results of the Department of Ecology investigation are summarized in a Report of Examination (ROE). The ROE contains the Department of Ecology’s staff-level decision on the water right transfer request, including a recommendation to either approve or deny the application. Once approved, the Department of Ecology issues either a final ROE or an Order approving the ROE. The final ROE may contain specific conditions of the transfer. Washington Department of Ecology – Water Right and Water Right Change Reports of Examination Webpage; Water Rights Processing Procedures, p. 13-15.
In order for the Department of Ecology to approve the water right transfer the Department of Ecology must determine:
- The water right to be changed actually exists;
- The change does not impair any existing rights;
- The change is not detrimental to the public welfare (for groundwater rights only); and
- The amount of water use determined in the right will not increase if additional acres are to be irrigated or an additional purpose of use is added.
In determining whether or not to approve a water right transfer, the Department of Ecology will confirm that:
- The change does not increase the amount of water used, either instantaneously or annually;
- The water right is eligible to be changed and the entire right, or portion of the right, has not been abandoned or relinquished for non-use;
- The source of water will not change;
- The water is being put to beneficial use; and
- The proposed use is not detrimental to public welfare (for groundwater rights only).
19-WA-c.18 to 19-WA-c.21 – Does a Protestor, Interested Party, or Developer Appeal?
A developer or any interested party may appeal a decision by the Department of Ecology to issue or deny a permit to the Washington Pollution Control Hearings Board (“PCHB”) within 30 days of the date of receiving the notice of the decision. Washington – Wash. Rev. Code §§ 43 et seq., State Government-Executive; Wash. Admin. Code § 371-08.
If an individual appeals the Department of Ecology’s final decision, the appealing party may request that the PCHB issue a stay of the Department of Ecology’s decision. If a stay is issued, the developer may not begin implementing the change request until the case is resolved. If a stay is not issued, the developer may begin to take action, but does so at their own risk.
The PCHB will hold a hearing on the matter and may affirm, deny, or modify the Department of Ecology final decision. The developer must comply with the PCHB’s decision.
19-WA-c.22 – Develop Water Project and Submit Progress Reports
Once the Department of Ecology issues its final decision, the developer may begin taking action on the requested change. The developer must submit progress reports as each phase is completed. The reports include:
- Begin Construction – Notifies the Department of Ecology that the developer has started the construction necessary for the project;
- Completion of Construction – Notifies the Department of Ecology that the developer has installed all of the infrastructure necessary for the project; and
- Proof of Appropriation of Water – Notifies the Department of Ecology that the project is complete and the water has been put to full beneficial use, consistent with the Department of Ecology’s ROE.
The developer may request an extension if unable to complete these forms according the project schedule in the ROE. Failure to request an extension when the form is not completed on time could result in the cancellation of the change decision.
19-WA-c.23 – Proof of Appropriation of Water
When the developer puts the water to full beneficial use, the developer must complete and submit a notarized Washington Department of Ecology - Proof of Appropriation of Water affidavit form. The form includes:
- Exactly what facilities or equipment the developer is operating;
- How much water the developer is using;
- The purpose of the water use;
- Where the water is being used; and
- A statement that all conditions of the permit have been met.
19-WA-c.24 – Conduct Field Visit
Once the developer submits the Proof of Appropriation of Water form, the Department of Ecology may conduct a field visit to verify the project is complete. A certified water right examiner must complete the field visit (if required). The developer is responsible for hiring the examiner. An approved list of certified water right examiners can be found on the Washington Department of Ecology Certified Water Right Examiner Program Website.
19-WA-c.25 – Superseding Certificate, Superseding Permit, or Certificate of Change
Once the developer completes the change or transfer to the water right, the Department of Ecology issues a final water right document based on the quantities being beneficially used. Wash. Rev. Code § 90.03.380(1). The Department of Ecology issues a Superseding Certificate to document the change in a water right certificate, a Superseding Permit to document the change to a water right permit, and a Certificate of Change to document the change in a water right claim. The Department of Ecology records the permit internally. Wash. Rev. Code § 90.03.330(1).
19-WA-c.26 – Record Certificate or Permit and Send to Developer
The county auditor’s office in the county/counties where the project is located also records the Superseding Certificate, Superseding Permit, or Certificate of Change. The county auditor then forwards the appropriate certificate to the developer. The appropriate certificate becomes the legal record of the water right. Wash. Rev. Code § 90.03.330(1).
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- Washington Department of Ecology Water Resources Website
- Application to Change or Transfer an Existing Water Right
- Certified Water Rights Examiner link
- An Introduction to Washington Water Law
- Washington Department of Ecology – Changing or Transferring an Existing Water Right
- Washington Department of Ecology – Water Right Change Webpage
- Washington Department of Ecology - Proof of Appropriation of Water
- Washington Department of Ecology – Water Rights Processing Procedures
- Washington State Department of Ecology Water Right Fee Estimator Website