ANALYSIS OF HB 2099

House Agriculture & Ecology Committee                                       February 22, 1999

- Expressly broadens an exemption from relinquishment provided for the non-use of a water right resulting from the operation of legal proceedings.

BACKGROUND:  If a person abandons or voluntarily fails to use beneficially all or any part of the person=s water right for five successive years, the right or portion unused is relinquished and reverts to the state.  (RCW 90.14.160 through 90.14.180.)  A procedure has been established under which the Department of Ecology may determine and the Pollution Control Hearings Board may confirm that a water right has reverted to the state for non-use.  (RCW 90.14.130.)

A number of exemptions from this relinquishment requirement are listed by statute.  One of these applies if the non-use occurs as the result of the operation of legal proceedings.  (RCW 90.14.140(1)(d).)  In a recent decision, the State Supreme Court discussed the applicability of this exemption in the case of a development delayed during general adjudication proceedings conducted in the Yakima River basin.  The court stated that the statutory construction of the exemption requires more than involvement in legal proceedings, it A . . . requires that the nonuse of water be attributable to the legal proceedings, i.e., that the legal proceedings prevent the use of the water.@  The court added that A . . . while development plans may have been delayed as a result of the litigation, it is not clear whether beneficial use of the water for other purposes was prevented while the litigation was pending.@   (R.D. Merrill Co. v. P.C.H.B Slip Opinion (January 1999) at Page 25.)

SUMMARY:  The exemption from relinquishment of a water right provided by law for non-use resulting from the operation of legal proceedings is modified.  The exemption now applies if the non-use occurs as a result of the operation or pendency of a general adjudication proceeding initiated under the surface or groundwater code or other legal proceedings concerning the water right or appurtenant real property.