Washington Journal of Environmental Law & Policy


Matthew Rajnus


Washington manages water rights under conflicting goals—maximizing net benefits while protecting water rights from any impairment. Over time, the state judiciary, often at the request of the Washington Department of Ecology (Ecology), has elevated the water right impairment standard to an absolute protection. Initially, Division III of the Washington Court of Appeals held that it was proper for Ecology to require a modeled impact of 0.004 percent in river flows, finding that this was substantial and could not be allowed; then, the Washington Supreme Court concluded that any impact constituted impairment; and most recently, the Court paradoxically declared that instream flows are too valuable to be submitted to a balancing test where their value would be less than other uses. The result is an absolutist application of the impairment standard that impedes the consideration of net benefits in new use or change authorizations. This strict legal interpretation occurs in contrast to the stated legislative purpose and in spite of recent legislative programs that have sought to ease the impairment requirements. In practice, this tension is acknowledged and some impairment is allowed. This Comment outlines the impairment standard as applied, and reads recent legislative modifications to the water code as creating an agreed upon loosening of the standard. Further, the Comment argues that the current standard impedes the ability of market and regulatory forces to facilitate changes and transfers that maximize the net benefits of water use. This Comment suggests that Washington’s water policy of obtaining the maximum net benefits would be better served by an impairment standard that allows for some level of impairment of instream and out-of-stream existing uses, and suggests increasing the ability of Ecology to regulate existing rights.

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