Washington state water rights law can be both complex and arcane. However, there are key fundamental principles that decide whether a project will get to use water the way they want to. One of these principles is not increasing consumptive use under a water right. This rule originates from the “no impairment” standard in Washington which says you can change your water right to a new use, but you can’t harm any other water right holder by doing so. One way you can impair another’s water right is by increasing the “consumptive use” as a result of your project.
How Spreading Acreage Policy Increased Focus on Consumptive Use
Before 1997, consumptive use was not a common term of art in water rights. That is because the law prohibited increasing the number of acres authorized on your right, even if you wouldn’t use any more water by doing so. This is still the case in Oregon. However, in 1997, the Legislature allowed increases in acreage (also called “spreading”) so long as the consumptive use was not increased.
For example, this allowed farmers to change from 40 acres of orchard to 80 acres of vineyard, which was not allowed before. In order to prevent impairment by an increase in consumptive use, the Legislature created a formula to quantify how much of your total use is divided into consumptive use (which is typically evapotranspired by plants) or return flow (which seeps into the ground and becomes available for others to use).
‘Use-it-or-Lose-it’ and The Loyal Pig Vineyard Story
Loyal Pig Vineyard case hinged on the consumptive use principle, a fundamental element of water rights projects and case law.
Recently, there was an interesting case hinging on the consumptive use principle that was decided in the Court of Appeals (where it ultimately was denied after an earlier victory in Superior Court). The Loyal Pig case was arguing that it need not calculate consumptive use for its current transfer because it had already done so in a previous transfer less than 5 years earlier. Because the “use-it-or-lose-it” relinquishment standard is a 5-year standard, they sought to harmonize these two different elements of the water code and simplify later transfers. This was important to them because the final amount of acres they sought to spread was not known at the start of their project, but rather a function of how efficient they could be with their crops.
Ultimately, the Court decided that the plain language of the consumptive use test trumped any benefit to harmonize different elements of the water code, although that could be done legislatively. Now Loyal Pig can either appeal to the Supreme Court or start over and process their transfer with the proper calculations.
Knowing the Case Law is Key to Water Rights Permitting
While this case was procedural in nature, it shows that knowing and staying up to date in water rights case law is crucial to water rights permitting success. Aspect routinely works with farmers and agricultural clients on quantifying consumptive use of their water rights and has successfully processed numerous spreading transfers.