Public Interest in Water Law
The public interest plays a crucial role in various aspects of water law, particularly in determining new appropriations, permit extensions, filing adjudications, and managing water resources. Water law requires consideration of public welfare, existing rights, and beneficial uses when granting permits or making decisions related to water allocation. Stakeholder involvement and seeking public input are key components to ensure water management aligns with the public interest.
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Where does public interest apply in water law? 1. New appropriations. RCW 90.03.290 (3) The department shall make and file as part of the record in the matter, written findings of fact concerning all things investigated, and if it shall find that there is water available for appropriation for a beneficial use, and the appropriation thereof as proposed in the application will not impair existing rights or be detrimental to the public welfare, it shall issue a permit 4 Part Test: Water is available Proposed use is a beneficial use Proposed use will not impair an existing right Proposed use is not detrimental to the public welfare
New appropriations - process RCW 90.03.290 If it is proposed to appropriate water for the purpose of power development, the department shall investigate, determine and find whether the proposed development is likely to prove detrimental to the public interest, having in mind the highest feasible use of the waters belonging to the public.
2. Water right permit extensions RCW 90.03.320 For good cause shown, the department shall extend the time or times fixed as aforesaid, and shall grant such further period or periods as may be reasonably necessary, having due regard to the good faith of the applicant and the public interests affected.
3. Filing an adjudication. RCW 90.03.110 (1) Upon the filing of a petition with the department by a planning unit or by one or more persons claiming the right to any waters within the state or when, after investigation, in the judgment of the department, the public interest will be served by a determination of the rights thereto RCW 90.44.220 Upon the filing of a petition with the department by a planning unit or by one or more persons claiming a right to any waters within the state or when, after investigation, in the judgment of the department, the public interest will be served by a determination of the rights thereto, the department shall file a petition to conduct an adjudication
4. General declaration of fundamentals for utilization and management of waters of the state. RCW 90.54.020 (10) Expressions of the public interest will be sought at all stages of water planning and allocation discussions. RCW 90.54.020 (11) Water management programs, including but not limited to, water quality, flood control, drainage, erosion control and storm runoff are deemed to be in the public interest
5. Trust Water Rights (Instream Flow Protection). 90.42.040 (4)(a) Exercise of a trust water right may be authorized only if the department first determines that neither water rights existing at the time the trust water right is established, nor the public interest will be impaired.
Definitions/direction about what public interest is or how to determine what it is? 1. Water right permitting RCW 90.03.255 NOTES: RCW 90.03.255 NOTES: "The legislature finds that in many basins in the state there is water available on a seasonal basis that is in excess of the needs of either existing water right holders or instream resources. The legislature finds that excess waters often result in significant flooding and damage to public and private resources. Further, it is in the public interest to encourage the impoundment of excess water and other measures that can be used to offset the impact of withdrawals and diversions on existing rights and instream resources.
2. Watershed Planning RCW 90.82.130 (4) After a plan is adopted in accordance with subsection (3) of this section, and if the department participated in the planning process, the plan shall be deemed to satisfy the watershed planning authority of the department with respect to the components included under the provisions of RCW 90.82.070 through 90.82.100 for the watershed or watersheds included in the plan. The department shall use the plan as the framework for making future water resource decisions for the planned watershed or watersheds. Additionally, the department shall rely upon the plan as a primary consideration in determining the public interest related to such decisions.
3. Elements of Water Management Programs. RCW 90.54.020 (11) Water management programs, including but not limited to, water quality, flood control, drainage, erosion control and storm runoff are deemed to be in the public interest.
4. Interties RCW 90.03.383 The legislature finds that it is in the public interest to recognize interties existing and in use as of January 1, 1991, and to have associated water rights modified by the department of ecology to reflect current use of water through those interties, pursuant to subsection (3) of this section. The legislature further finds it in the public interest to develop a coordinated process to review proposals for interties commencing use after January 1, 1991.
4. Stormwater control facilities. RCW 90.03.500 The legislature finds that increasing the surface water or stormwater accumulation on or flow over real property, beyond that which naturally occurs on the real property, may cause severe damage to the real property and limit the gainful use or enjoyment of the real property, resulting in a tort, nuisance, or taking. The legislature finds that it is in the public interest to permit the construction and operation of public improvements to lessen the damage.
4. Expedited permit processing. RCW 90.03.655 (2) If the conditions of subsection (1) of this section have been met and the department determines that the public interest is best served by expediting applications within a water source...
Other considerations RCW 90.54.020 (3) The quality of the natural environment shall be protected and, where possible, enhanced as follows: (a) Perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values. Lakes and ponds shall be retained substantially in their natural condition. Withdrawals of water which would conflict therewith shall be authorized only in those situations where it is clear that overriding considerations of the public interest will be served.
Questions for project: 1. Other states How is public interest used by other Western States in water allocation? How is public interest determined (factors, process, etc) by other Western States in water allocation? Does it work well? Do those people engaged with implementing those standards/requirements have input or feedback on how to make improvements on their use of public interest? Note: We want you to not focus on Legislative statements about declaring public interest, but more about the agency s role in defining and process for assessing public interest.
Questions for project: 2. In Washington Are there other WA natural resource management references to public interest and if so, how is that defined/determined? Is there anything from topics outside of natural resource management that would be useful for our understanding of public interest? How do WA water resource interests define public interest? Is there any commonality or do they all define it specific to their interests? Note: We want you to not focus on Legislative statements about declaring public interest, but more about the Department of Ecology s role.
Questions for project: 3. Public interest vs. public trust doctrine The Water Law article from Rachel Paschal Osborn connects public interest to public trust doctrine. Is this how other states consider public interest? Is this how other water resources interests in WA consider public interest? Is there anything in the academic literature to support a direct connection of public interest and the public trust doctrine?
