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Municipal Water Law

Introduction

The regulation of municipal water is an important element of water management in Washington State.  This web page is reserved for issues relevant to the 2003 Municipal Water Law - Municipal Water Supply – Efficiency Requirements Act Chapter 5, Laws of 2003.

The main purpose of the web site is to provide more clarity and understanding regarding this law.  The site contains information on documents that are in process. 

Memorandum of Understanding (MOU)

Memorandum of Understanding (MOU) and Joint Review Procedures between the Office of Drinking Water - Department of Health and the Water Resources Program – Department of Ecology

The 2007 MOU supersedes and replaces prior MOUs between Ecology and DOH. Each MOU has served the purpose of outlining the agencies’ roles and responsibilities so they might better coordinate their actions on aspects of their missions that overlap. The MOU has been updated primarily to include new coordination procedures that had to be developed as a result of the passage of the 2003 Municipal Water Law.

• 2007 Memorandum of Understanding between the State of Washington Department of Health and Department of Ecology - Related to the coordination between Planning, Engineering, Public Health and Safety Processes, and Water Resources
• Joint Review Procedures for Planning and Engineering Documents April 2007
• Appendix H on Interruptible Water Rights (April, 2009)
  • Flowchart for Interruptible rights processing  10/08/2008 Final Draft

Background Documents for the Development of the MOU:

Before finalizing the 2007 update of the MOU and the Joint Review Procedures for Planning and Engineering Documents, Health and Ecology requested comments on draft versions of these documents.  After the informal comment period ended on April 9, 2007, the agencies considered comments received, made revisions to the documents as needed, and then finalized them.

• Draft Memorandum of Understanding between State of Washington Department of Health and Department of Ecology - Related to the coordination between Planning, Engineering, Public Health and Safety Processes, and Water Resources
• Draft Joint Review Procedures for Planning and Engineering Documents March 2007

Municipal Water Law Agency Responsibilities Outline (June 23, 2006) This document describes the roles of the Department of Health and the Department of Ecology in implementing the 2003 Municipal Water Law. It briefly describes how each agency will incorporate their role into a legal mechanism, if applicable, and a schedule for completion.

Previous Memoranda of Understanding:

1. 2002 Memorandum of Understanding for Coordination of water System Plans and Water Right Application Review
2. 1992 memorandum related to coordination of the Department of Ecology’s Water resources program and the Department of Health’s drinking Water Program.
3. 1991 Umbrella agreement between the Departments of Health and the Ecology

Please send questions to:

Don Davidson
Water Resources Program
Department of Ecology
POB 47600
Olympia, WA 98504-7600
360 407-6636
ddav461@ecy.wa.gov

Guidance & Explanatory Documents

The following guidance documents are primarily designed for Ecology Staff use.  Ecology has developed several guidance documents to streamline and improve consistency between regions in the coordination and review of documents for water rights administration and Water System Plan/Small Water System Management Program reviews.

As these documents are developed by Ecology’s internal Municipal Water Law implementation group, they will be presented to the Water Resource Program Management Team (PMT).  Once the PMT has approved them and they receive Ecology management concurrence (as needed), they will be posted to this website.  The following documents are intended for Ecology staff use in their reviews and have been approved by the Water Resources Program Management Team:

• The 2003 Municipal Water Law Interim Guidance and Interpretive and Policy Statement   effective 05/14/2009 
• Ecology Analysis of Place of Use Language Since The Effective Date of the Municipal Water Law
• Water System Plan Review Checklist
• Source Approval Review Checklist
• General Process for Determining Consistency Between Water System and Watershed Plans (not developed yet)
• Enforcement Discretion and Municipal Water Suppliers (not developed yet)
• “Reasonable Due Diligence” Language for Water Rights (not developed yet)
• Ecology Comment Response Form (not developed yet)

Place of Use Language Analysis Summary

New place of use language for municipal water rights was approved by the Water Resources Program Management Team in December 2005.  The language to be used is the following:

The place of use (POU) of this water right is the service area described in the most recent Water System Plan/Small Water System Management Program approved by the Washington State Department of Health, so long as name of water right holder is and remains in compliance with the criteria in RCW 90.03.386(2). RCW 90.03.386 may have the effect of revising the place of use of this water right.

Water Resources staff have analyzed changes to municipal water rights issued between the effective date of the 2003 Municipal Water Law (9/9/03) and the adoption of the above language. 

We have concluded that as Water Resources staff work with water right documents having a place of use description different from the now preferred language, they may adjust the place of use language as it seems appropriate. For the 327 rights that were changed between September 2003 and January of 2006, place of use language has varied.  Provided the criteria in RCW 90.03.386 have been met, the place of use of a municipal water right is altered regardless of the place of use language on the original document.  Therefore, having outdated place of use language on a water right document is not particularly problematic.  We are working on similar language for other water right documents, as appropriate.

Legal Challenges to the Municipal Law

April 8, 2009

• Reply Brief of Respondents/Cross-appellants Lummi Nation, et al.
• Reply Brief of Respondents/Cross-appellants Joan Burlingame, et al. 

March 3, 2009

• WA Supreme Court accepts direct review of the Municipal Water Law case (Lummi Nation, et al. v. State)

February 23, 2009

• Response and Reply Brief of Appellant/Cross Respondent State of Washington
• Reply Brief of Appellant/Cross Respondent Washington State University
• Reply Brief of Appellant/Cross Respondent Cascade Water Alliance
• Reply Brief of Appellant/Cross Respondent Washington Water Utilities Council

January 9, 2008 Update

• State of Washington Motion for an Extension of Time to File Response/Reply Briefs - January 8, 2009 Motion granted

December 24, 2008 Update

Opening Briefs - State Supreme Court Appeals

• Opening/response brief filed by the Burlingame Plaintiffs
• Opening/response Brief filed by the Plaintiff Tribes

October 28, 2008 Update

Opening Briefs

• Opening Brief of Appellant/Cross-Respondent State of Washington
• Appellant/Cross-Respondent Washington State University's Opening Brief
• Brief of Appellant/Cross Respondent Cascade Water Alliance
• Washington Water Utilities Council's Opening Brief

July 17, 2008 Update

Burlingame plaintiffs and the plaintiff tribes file cross appeals to the Supreme Court to challenge parts of Judge Rogers’ rulings on certain sections of the MWL .

• Notice of appeal to Washington Supreme Court
• Certificate of Service

July 7, 2008 Update

As you may already be aware, on June 11, King County Superior Court Judge Jim Rogers struck three sections of the Municipal Water Law.  One section concerns water rights, and the others provide definitions of the terms “municipal water supplier” and “municipal water supply purposes.” 

On July 7, the Office of the Attorney General filed a notice of appeal on behalf of the Governor and our agencies to the state Supreme Court, seeking to overturn the ruling.  The issues are complex, as you know, and the appeal process will take time to resolve.

• July 7, 2008 Washington State Office of the Attorney General Press Release - McKenna announces appeal of water rights decision 
  • July 3, 2008 Defendant State of Washington's Notice of Appeal to Washington Supreme Court and Certificate of Service NO. 06-2-40103SEA

In the meantime, we wanted to share with you how the Departments of Health and Ecology will do business until the appeal is resolved. 

Because the ruling immediately affects the administration of water rights by Ecology and the oversight of public water systems by Health, the agencies are developing interim policies for staff to follow. 

Until final court action occurs, we will not change any reviews and decisions made between the time the Municipal Water Law was enacted in 2003 and June 11, 2008, when the judge announced his ruling.

Given the current uncertainties, our goal is to minimize inconvenience to the public and provide clear guidance to water suppliers.

We’ll keep you informed as the case progresses. Please let us know if you have questions and concerns.

Best regards,

Denise Clifford Director, Office of Drinking Water Department of Health
Ken Slattery Manager, Water Resources Program Department of Ecology

Background

Below is information about requests for action regarding the constitutionality of the municipal water law and subsequent legal challenges to the law. For those already familiar with the lawsuits, current status links are provided immediately below:

• Transcribed oral ruling of the Honorable Jim Rogers from June 11, 2008 in the Lummi Municipal Water Law case  6-25-08
• Order Granting In Part & Denying In Part Summary Judgment Motions in the Municipal Water law case.  6-11-08
• Notice of Hearing  – LUMMI NATION, et al., Plaintiffs v. STATE OF WASHINGTON. ET AL., DEFENDANTS. May 23, 2008 at 1:30 p.m.
• Claims Pertaining to RCW 90.03.330(2)  - Defendant State of Washington's memorandum in response to plaintiff's new claims pertaining to RCW 90.03.330(2)
  • Plaintiff Tribes' Reply in Support of Motion for Summary Judgment RE. 90.03.330(2)
  • Burlingame Plaintiffs' Reply as to Procedural Due Process Challenge to RCW 90.03.330(2)

Defendants, Intervenors, and Plaintiffs reply briefs regarding motions for Summary Judgment in Lummi/Burlingame, et al. v. Ecology/Health, et al.

• State’s reply brief to Plaintiff Tribes’ responses to the State’s summary judgment motion
• State’s reply brief to Burlingame Plaintiffs’ responses to the State’s summary judgment motion
• Plaintiff Tribes’ Reply In Support of Motion for Summary Judgment
• Burlingame Plaintiffs' Reply in Support of Motion for Summary Judgment
• Defendant - Intervenor Cascade Water Alliance's Reply to Plaintiffs' Response to Motions for Summary Judgment
• WWUC's Reply to State’s Memorandum in Response to WWUC’s Motion for Summary Judgment
• WWUC’s Reply to Plaintiffs’ Memoranda in Response to WWUC’s Motion for Summary Judgment

Washington State University, Plaintiff Tribes’, Burlingame Plaintiffs’, and Washington Water Utilities Council’s summary judgment motionss

• Defendant-Intervenor Washington State University's Response to Plaintiffs' Motions for Summary Judgment
• Defendant-Intervenor Cascade Water Alliance's Response to Plaintiffs' Motions for Summary Judgment
• Defendant-Intervenor Washington Water Utilities Council's Response to Plaintiffs' Motions for Summary Judgment
• Plaintiff Tribes' Response to Defendants and Defendant-Interveners' Motions for Summary Judgment
• Burlingame Plaintiffs' Response to Defendants' Motions for Summary Judgment

State’s responses to the Plaintiff Tribes’, Burlingame Plaintiffs’, and Washington Water Utilities Council’s summary judgment motions

• State of Washington's Memorandum in Opposition to Plaintiff Tribes' Motion for Summary Judgment
• State of Washington's Memorandum in Opposition to Burlingame Plaintiffs' Motion for Summary Judgment
• State of Washington's Memorandum in Response to Defendant-Intervenor Washington Water Utilities Council's Motion for Summary Judgment

Motions for Summary Judgment

Following are the motions for Summary Judgment filed by the environmental tribal plaintiffs and state defendants in the consolidated Lummi-Burlingame case.  Attachments are omitted.

• Defendant Intervenor Cascade Water Alliance’s Motion for Summary Judgment
• Defendant Intervenor Washington Water Utility Council’s Motion for Summary Judgment
• Plaintiff Tribes' Motion for Summary Judgment
• Burlingame Plaintiffs' Motion for Summary Judgment
• Defendant State of Washington's Motion for Summary Judgment
• Proposed Order Granting Defendant State of Washington's Motion for Summary Judgment

Current Status of Consolidated Lummi/Burlingame Litigation

1. State Defendants' First Set of Answers and Responses to Plaintiffs First Interrogatories
2. Plaintiffs First Interrogatories: Lummi-Burlingame case

Request for Action Regarding the Constitutionality of the Municipal Water Law - June, 2006

• Request for Action Regarding the Constitutionality of the Municipal Water Law - Letter from the "Petitioners"
  • Attorney General Response to Request for Action Regarding the Constitutionality of the Municipal Water Law - Maureen A. Hart, Solicitor General
• Request for Action Regarding the Constitutionality of the Municipal Water Law - Letter from the "Tribes"
  • Attorney General Response to Request for Action Regarding the Constitutionality of the Municipal Water Law - Maureen A. Hart, Solicitor General

Complaint for Declaratory and Injunctive Relief - September, 2006

A complaint for declaratory and injunctive relief from certain provisions of the 2003 Municipal Water Law (SESSHB 1338), was filed in King County Superior Court on September 1, 2006. Plaintiffs are Joan Burlingame, Lee Bernheisel, Scott Cornelius, Peter Knutson, Puget Sound Harvesters; Washington Environmental Council; Sierra Club; and the Center for Environmental Law and Policy. Defendants are the State of Washington, Washington State Department of Ecology, and Washington State Department of Health.

• Complaint for Declaratory and Injunctive Relief
• Ecology/Department of Health Response to Complaint - 09/26/2006 Answer of the defendants; State of Washington, Department of Ecology and Department of Health, to Plaintiffs complaint for Declaratory and Injunctive Relief

Complaint for Declaratory and Injunctive Relief – December, 2006

A complaint for declaratory and injunctive relief from certain provisions of the 2003 Municipal Water Law (SESSHB 1338), was filed in King County Superior Court on December 26, 2006. Plaintiffs are Lummi Indian Nation, Makah Indian Tribe, Quileute Indian Tribe, Quinault Indian Nation, Squaxin Island Indian Tribe, Suquamish Indian Tribe, and the Tulalip Tribes, federally recognized Indian tribes. Defendants are the State of Washington; Christine Gregoire, Governor of the State of Washington; Washington Department of Ecology; Jay Manning, Director of the Washington Department of Ecology; Washington Department of Health; and Mary Selecky, Secretary of Health for the State of Washington.

• Tribal Complaint for Declaratory and Injunctive Relief
• Answer of the Defendants 01/10/2007 - Defendants Response to Tribal summons and complaint - 01/10/2007 Answer of the defendants; State of Washington; Christine Gregoire, Governor of the State of Washington; Washington Department of Ecology; Jay Manning, Director of the Washington Department of Ecology; Washington Department of Health; and Mary Selecky, Secretary of Health for the State of Washington; to Plaintiffs' summons and complaint for Declaratory and Injunctive Relief.

Consolidation of Burlingame and Lummi Indian Nation Complaints – March 2007

A joint motion to consolidate the above cases was granted in March of 2007. The cases were consolidated under the case number for the original Lummi Indian Nation complaint.  The case will be heard in King County Superior Court in 2008. See above links under “Current Status of Consolidated Lummi/Burlingame Litigation” for further updates.

Presentation, Information & Links

Presentations

• Municipal Water Law: How we got there, background of the law, litigation - presented by Ken Slattery, WRP Program Manager, July 14, 2009
• Joint DOH-DOE Training – July, 2007
• Municipal Water Law Implementation and Litigation Presentation: Policy Documents, Rules and Other Implementation Efforts. Law Seminars International. June 4 and 5, 2007
• Washington Association of Water and Sewer Districts Conference Presentation – April 19, 2007

General Information

• Quick Reference 01/23/2006 – Municipal Water Management in the Water Code, Ch. 90.03 RCW. (Describes where sections of 2E2ESHB 1338 are codified in Ch. 90.03 RCW)

Information Sources (Links)

• Water Supply Advisory Committee
• Department of Ecology, Water Quality Program, Water Reclamation and Reuse
• Office of Drinking Water, Home Page
• Office of Drinking Water, Sentry Internet Home Page – This web site is intended to provide summary information pertaining to public water systems.
• New Water Use Efficiency Rule Goes Into Effect January 22, 2007 -The Washington State Department of Health, Office of Drinking Water, has taken an important step in conserving water for the environment and meeting the needs of future generations by adopting rules that require public water systems to use water more efficiently.

Contacts

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