Washington New Water Right Permit (19-WA-b)
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. Under Washington law, the waters of Washington belong collectively to the public and as such are not owned by any individual or group. The Washington State Department of Ecology (“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, the 1945 Ground Water Act and its 1973 amendments RCW 90.44 Regulation of public groundwaters for the most part have brought groundwater under the same rules of prior appropriation as surface water. The Department of Ecology issues water right permits through its regional offices in Lacey, Bellevue, Yakima, and Spokane.
New Water Right Permit Process
19-WA-b.1 to 19-WA-b.2 – Water Right Pre-Application Consultation Form
The Department of Ecology advises applicants to use the pre-application process before submitting an application for a new water right. If the developer wishes to meet with the Department of Ecology’s permitting staff to discuss the water project, the developer should submit a complete Washington Department of Ecology - Water Right Pre-Application Consultation Form (“Pre-Application Consultation Form”) to the applicable regional Department of Ecology 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.
The developer may e-mail the Pre-Application Consultation Form to wrPreApp@ecy.wa.gov or mail a completed form to the appropriate regional Department of Ecology office. Washington Department of Ecology – Apply for New Water Right Webpage.
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 application process. During the meeting the Department of Ecology will provide the applicant with information about:
- Water availability challenges and opportunities;
- The status of pending applications in your area;
- Anticipated processing timelines;
- Application requirements, fees, and information needs;
- Water resources regulations specific to your area;
- Alternatives to filing water right applications;
- Qualifications for priority processing;
- Cost reimbursement options; and
- Ecology contacts.
19-WA-b.3 – Application for New Water Right Permit
Developers seeking a new water right must fill out the Washington – Department of Ecology - Application for a Water Right Permit (“Water Right Application”) and return the completed Water Right Application to Department of Ecology, along with the application fee. The Water Right Application must include, at minimum, the following:
- Contact information of the applicant (developer);
- Statement of intent regarding the project and the proposed point of diversion or withdrawal;
- Landowner of the proposed place of use;
- The purpose of the project;
- The purpose for which the water will be used;
- The point of diversion;
- The place of use;
- A description of the water system; and
- A description of the water supply system information.
The Department of Ecology stamps the Water Right Application on the day it is received. The date the Department of Ecology receives the Water Right Application will normally become the priority date, if the Department of Ecology accepts the Water Right Application and the developer included the correct filing fee. Water Rights Processing Procedures, at 5; W.A.C. § 508-12-140. RCW § 90.03.270.
19-WA-b.4 to 19-WA-b.6 – Review Application for Completeness
The Department of Ecology reviews the Water Right Application for administrative and technical completeness and accepts the application if complete. If additional fees are required, the Department of Ecology will notify the developer at this time. The Department of Ecology assigns the Water Right Application an application number and notify the developer of receipt of the application. Water Rights Processing Procedures, at 5.
19-WA-b.7 to 19-WA-b.8 – Send Legal Notice to the Developer for Publication
Once a Water Right Application is complete and accepted, the Department of Ecology sends 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. RCW 90.03.280; Water Rights Processing Procedures, at 6.. The developer must publish the notice once a week for two consecutive weeks. The notice must include, at minimum, the following:
- The basic facts of the request for a water right; and
- Information regarding the thirty (30) day protest period for any member of the public who believes that the proposed water use would impair other uses of the water resource (note 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 Water Right Application until after the developer submits the Affidavit.
19-WA-b.9 – Comment on Application
Members of the public have thirty (30) days to comment on or protest the water right application by submitting written comments to the Department of Ecology. Water Rights Processing Procedures, at 7.
19-WA-b.10 – Review Application and Public Comments
The Department of Ecology reviews the complete water rights application and any written comments from the thirty (30) day comment period. Water Rights Processing Procedures, at 7.
19-WA-b.11 – Conduct Field/Technical Investigation
The Department of Ecology conducts an investigation of the Water Right Application, which may include a field examination of the proposal to validate the information on the application. The Department of Ecology determines what water, if any, is available for appropriation and determines to what beneficial use or uses the water can be applied. RCW 90.03.290; Water Rights Processing Procedures, at 8.
The Department of Ecology may issue a preliminary permit for up to three years, if the Water Right Application does not contain or the developer does not furnish sufficient information for the Department of Ecology to grant a Water Right Permit. RCW 90.03.290.
The preliminary permit allows the developer to conduct surveys, investigations, studies, and progress reports the Department of Ecology determines necessary to make a final decision. The Department of Ecology may extend the preliminary permit for up to five years from its original issuance with the approval of the Governor if the developer establishes a good faith intent to carry on the proposed development. RCW 90.03.290.
19-WA-b.12 to 19-WA-b.13 – 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 Application. The ROE includes the recommendation to approve, approve with conditions, or deny the water right permit. Once approved by a Department of Ecology decision-maker, Department of Ecology issues either a final ROE or an Order approving the ROE.
19-WA-b.14 to 19-WA-b.17 – Does a Protester, Interested Party, or the 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 (“WPCHB”) within thirty (30) days of the date of receiving the notice of the decision. Washington – Wash. Rev. Code §§ 43 et seq., State Government-Executive; W.A.C. § 371-08.
19-WA-b.18 – Permit to Appropriate Public Waters
If Department of Ecology recommends that the Water Right Application be approved and no party appeals, the Department of Ecology issues the developer a Permit to Appropriate Public Waters. If a party does appeal the decision, the WPCHB may issue a stay suspending or postponing the effectiveness of the permit until they hold a hearing affirming the decision or otherwise lift the stay. If the decision is appealed and WPCHB does not issue a stay, the developer may begin the project at their own risk, but the decision could still be overturned on appeal. Water Rights Processing Procedures.
The water right permit allows the developer to construct the water system and put the water to use by the date specified in the permit. The water right permit includes the development schedule which specifies the date by which the developer must begin construction of the water system, complete construction of the water system, and put the water to beneficial use. Water Rights Processing Procedures.
Note: The Department of Ecology when “…evaluating an Water Right Application that includes provision for any water impoundment or other resource management technique, (must) take into consideration the benefits and costs, including environmental effects, of any water impoundment or other resource and costs, including environmental effects, of an water impoundment or other resource management technique that is included as a component of the application. The Department of Ecology’s consideration must include any increased water supply that results from the impoundment or other resource management technique, including but not limited to any recharge of groundwater that may occur, as a means of making water available or otherwise offsetting the impact of the diversion of the surface water proposed in the Water Right Application.
19-WA-b.19 – Develop Water Project (Request Extension if Needed) and Submit Progress Reports
Once the developer receives the water right permit, the developer may begin construction of the project according to the development schedule (or request an extension if needed) and must submit progress reports to the Department of Ecology as the developer completes each phase of development.
- 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.
19-WA-b.20 – 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 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-b.21 - Conduct Proof Examination and Request Certificate Fees
The Department of Ecology may choose to inspect the completed water project based on the Proof of Appropriation of Water submittal. After the Department of Ecology completes the inspection or if the Department of Ecology chooses not to inspect, the Department of Ecology will request the certificate filing and recording fees from the developer.
19-WA-b.22 – Pay Certificate Fees
The developer pays the fees required by the Department of Ecology for issuance of the Certificate of Water Right. Water Rights Processing Procedures.
19-WA-b.23 – Certificate of Water Right
Once the Department of Ecology receives the required fees from the developer, the Department of Ecology issues a Certificate of Water Right. The certificate cannot exceed the amount of water that has actually been put to beneficial use, up to the limit set in the permit. RCW 90.03.330.
19-WA-b.24 – Record Certificate and Send to Developer
The Certificate is recorded in the county auditor’s office in the county/counties where the project is located and at the Department of Ecology. The county auditor then forwards the developer the certificate. RCW 90.03.330(1).
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- Washington Department of Ecology Water Resources Website
- Washington – Department of Ecology - Application for a Water Right Permit
- Washington Department of Ecology - Water Right Pre-Application Consultation Form
- FAQ: Water Rights in Washington
- An Introduction to Washington Water Law
- Washington Department of Ecology – Apply for New Water Right Webpage
- Washington Department of Ecology – New Water Right Webpage
- Washington Department of Ecology – Water Rights Processing Procedures
- Washington Department of Ecology - Proof of Appropriation of Water
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