“Prevention, Not Enforcement": The Conundrum of "Regulation" Between Water Rights in Washington

Published Aug 01, 2011

In an article published in Western Water Law & Policy Reporter (August 2011), Tupper Mack Wells attorney Sarah Mack explores the latest effort by the Department of Ecology to gain authority to “regulate” between water rights.  Since the Washington Supreme Court decision in Rettkowski v. Ecology, 122 Wn.2d 219, 858 P.2d 232 (1993), Ecology has been precluded from determining “the existence, quantities, and relative priorities of various legally held water rights” outside of the context of a general stream adjudication conducted by a superior court.

Recently, Ecology relied on its inability to “regulate” as a justification for denying a water right change.  In Anderson Parker Investments, LLC v. Ecology, PCHB No. 09-115 (2010), the Pollution Control Hearings Board endorsed Ecology’s rejection of a mitigation proposal that would have created a trust water right for instream flows, agreeing with Ecology that because of Rettkowski the agency could not prevent junior water right holders from using the water.  After Anderson Parker, water right applicants may be under pressure to support legislation to undo Rettkowski – or face new obstacles in fashioning mitigation proposals to enable approval of their applications. For more information, contact Sarah Mack at mack@tmw-law.com.

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