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Lawmakers aim to ease 'use it or lose it'

Published on February 11, 2011 3:01AM

Last changed on March 11, 2011 12:38PM

Washington continues to expand 'sufficient cause' exemptions


Capital Press

Washington legislators this year will consider a change to the state's system of water rights that allows farmers to stop irrigating without losing access to water.

Over the years, the Washington Legislature has approved 21 reasons that may serve as "sufficient cause" to explain why water has not been used and avert a loss of water right.

Maia Bellon, deputy manager of Ecology's Water Resource Program, said the department will seek to add another exception to that list during the current legislative session, allowing for more flexibility in irrigation.

"Sometimes a farmer needs to make economic or marketing decisions on what they plant. There are different trends in crops, different consumer trends," she said. "Farmers who convert to a lower-water-use crop, then convert back to a high-water-use crop, shouldn't lose their original amount of water right."

Existing reasons include the lack of water due to drought, active service in the U.S. military, legal proceedings and restrictions or limitations imposed by special federal or state programs.

Irrigation-specific exceptions include temporarily reduced irrigation due to varying weather conditions, use of water-conservation measures as part of the Yakima River Basin Water Enhancement Project and reduced use of irrigation water due to crop rotation when sound farming practice advises the temporary change of crop type.

Another exception is when water rights are transferred to a trust, either temporarily or permanently.

Mary McCrea, a lawyer with the Washington Water Project of Trout Unlimited, said water right holders could have a variety of motivations for transferring the right to a trust: deciding how to use water on a newly purchased property, for example, or not using the water while a property is up for sale.

Many times, McCrea said, a hay farmer will put water into a trust instead of making a third cutting of hay. The cessation of irrigation leaves more in-stream water during late summer, a critical time for fish. By putting the water in trust, the farmer will not relinquish the use of his full water right in the future.

Barring a specific exception, though, once a water right has been established, the water must continue to be used or the right is lost.

This standard is derived from state law that reads: "A person who has a water right who voluntarily fails, without sufficient cause, to beneficially use all or part of their right for any period of five successive years shall relinquish such right or portion thereof."

Such relinquishment can be voluntary or involuntary, Bellon said.

"Water right holders can file a form to voluntarily relinquish their water right. This happens occasionally," she said. "An involuntary relinquishment would happen if Ecology receives information about a complaint of a long period -- sometimes 20 or 30 years -- of nonuse. That might come to our attention when the water right holder starts using the water again and the neighbors' wells go dry. That's not very frequent, either."

Any relinquished water right reverts back to the state and is reallocated to the next applicant in line.

The "use it or lose it" standard is pretty common in the West, Bellon said.

The key phrase in the state law cited above is "without sufficient cause."


Landowner's Guide to Washington Water Rights: www.warivers.org

Department of Ecology: www.ecy.wa.gov


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