Columbia Basin farmer fined $59,443 for illegal water use - Ecology News Release November 20, 2013
Water is vital to our daily activities. How we use water affects all of us – our neighbors, businesses, farms, and the environment. Growth in residential development, business, and agriculture has increased competition for water. Dwindling salmon stocks and their listing under the Endangered Species Act have heightened concern about excessive water use and compliance with water resources laws.
Laws regulating water use are not new. Even when Washington’s population was small and water demand was low, there was recognition that water use required regulation to reduce conflicts among competing water users and to protect the resource. The Legislature established the Surface Water Code in 1917, the Groundwater Code in 1945, and added provisions addressing water for fish and wildlife in 1949.
RCW 90.54, the Water Resources Act of 1971 set the stage for the Chapter 173-500 series of WACs that codify instream flow levels as water rights and a compliance effort to protect those flows.
The Department of Ecology’s Water Resources Program will work to ensure voluntary compliance with state water law. When voluntary compliance is not obtained, the program will take consistent, fair, equitable and assertive enforcement actions throughout the state. These compliance and enforcement actions will be selected and conducted with the following goals and objectives in mind:
Those applying for and receiving water rights first have priority in water use over those applying later. This tenet of water law is known as “first in time, first in right” or the prior appropriation doctrine.
A water right permit or certificate is required for all uses of surface water (lakes, ponds, rivers, streams, or springs) since the Surface Water Code was enacted in 1917. A water right permit or certificate is also required for non-exempt groundwater withdrawals that began after the adoption of the Groundwater Code in 1945.
There are four types of groundwater uses exempt from the state water-right permitting requirements:
For more information see:
Water rights must be maintained by continuing to put the water to beneficial use. Water rights may be legally lost, relinquished, if the right is not used for five or more consecutive years. There are exemptions to the relinquishment of a water right. For more information see:
Property owners who began their use of surface water or non-exempt groundwater before enactment of the surface water or groundwater codes, and who continue that use must have filed a water right claim. A water right claim is a claim by the property owner that they put water to beneficial use prior to enactment of the water code, and that they have continued to use that water without a break of five or more consecutive years. A claim may represent a valid water right if it describes a surface water use that began before 1917 or a groundwater use that began before 1945. There are more than 168,000 water right claims in Washington State.
According to the Washington Water Code, it is illegal to:
Example: An extract of RCW 90.03.250: The construction of any ditch, canal or works, or performing any work in connection with said construction or appropriation, or the use of any waters, shall not be an appropriation of such water nor an act for the purpose of appropriating water unless a permit to make said appropriation has first been granted by the department. Such activities can be the basis of an order under RCW 43.27A.190.
The goal of the compliance program is to manage the water resources of the public by ensuring voluntary compliance with state water law, and by taking consistent, fair, and assertive enforcement actions throughout the state. Ecology relies on technical assistance, voluntary compliance, and formal enforcement to gain compliance with water laws. Efforts are being concentrated in 16 fish critical basins across the state where low stream flows are a limiting factor for salmon populations. Ecology’s compliance plan includes the following actions:
While Washington has a long history of regulating water use, compliance with water use laws has become increasingly urgent to:
When Ecology determines that a violation has occurred or is about to occur, we first attempt to achieve voluntary compliance. As part of this first response, we offer information and technical assistance in person, by phone, or in writing. Our technical assistance efforts are focused on identifying one or more ways to meet the person's needs within the framework of the law.
RCW 90.03.605 establishes this approach. However, the law also allows Ecology to take immediate action if we believe the violation is causing harm to other water rights or to public resources (90.03.605 (2))
If education and technical assistance do not achieve compliance, we move to a formal enforcement action. First a notice of violation and/or a formal administrative order, (RCW 43.27A.190) is issued. If the violation continues, we can assess a civil penalty (RCW 90.03.600). Ecology can also seek court injunctions or criminal prosecution to achieve compliance with Washington’s water right laws and regulations.
Notice of Violation:
A Notice of Violation officially informs the recipient that they have violated, or pose the potential to violate, the water code.
An Administrative Order directs violators to take certain actions within a specified time frame. An example of a directive contained in an Order may be to “immediately cease and desist unauthorized use of water.” Failure to comply with an administrative order may result in civil penalties.
The maximum penalty for violating water rights law was increased during the 2003 legislative session. The maximum of $100 per day (set in 1917) now ranges between $100 and $5,000 per day for each separate violation, based on the seriousness of the violation. For more information read Water Resources Program Guidance GUID-2005-Levying Civil Penalties
Administrative orders and penalty notices issued by Ecology can be appealed to the Washington Pollution Control Hearing Board. Information concerning the appeal process is provided in the order or penalty document. For more information read "Your Right to Be Heard"
Disagreements may be a civil matter:
Disagreements between private parties regarding water use may need to be settled in court. For example, a court settlement may be needed if you believe your neighbor’s water use is interfering with yours. Court settlements are most necessary if one or more uses are based on claimed rights that have not been confirmed in a water rights adjudication.
Ecology considers the following criteria when assessing penalties for violating water use laws or regulations:
Ecology’s goal is to ensure that water users comply with the state's water laws so that other legal water users are not impaired, water use remains sustainable over the long term, and the environment is protected for the benefit of people and nature.
These are the 16 basins across the state where low flows are a known limiting factor to salmon populations. They have been identified through the Statewide Salmon Recovery Strategy.
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