Farmers: Water relinquishment laws a disincentive

Use-it-or-lose-it rules deeply rooted in West

Peggy Steward
Capital Press Staff Writer

February 9, 2007

Use it or lose it. In a nutshell, that's what relinquishment is all about when it comes to Western water law.

Relinquishment laws are not uniform across the states, but they are based on similar principles, said Reed Benson, a law professor at the University of Wyoming in Laramie and a water law specialist.

Use-it-or-lose-it laws generally have two forms, Benson said. One is abandonment, where a water right holder doesn't use water for a certain period of time and intends to relinquish the right. Given the value of a water right, that almost never happens and intent to abandon would be hard to prove, Benson said.

The second form is forfeiture, Benson said. That's a statutory principle that says, in general terms, if a water right holder fails to put water to beneficial use over a prescribed period, usually five years, he forfeits all or part of the right that wasn't used, unless there's a valid excuse, Benson said.

Some states recognize exemptions from the requirements under certain conditions, Benson said. Examples include during years of drought when water wasn't fully available, while waiting for permits to develop a water right or when the water right holder was away in active military duty, he said.

Across the West, there haven't been many outright forfeiture cases, Benson said, because states haven't been rigorous in enforcement, it takes a legal process to reduce a water right and courts, especially local courts, have been reluctant to declare a water right lost for nonuse.

Where use-it-or-lose-it laws come into play regularly, however, is during water rights adjudication or whenever there's a request for a change of use or point of diversion, or a transfer of a water right, Benson said.

Then, the water right comes under scrutiny to determine if historical use was beneficial and how much water was used. It's not uncommon for water rights to be trimmed, mainly to avoid injury to other water right holders, he said. That may not seem fair to the holder of a right that is reduced, but it's deeply rooted in Western water right doctrine, Benson said.

The idea of prior appropriation - first in time, first in right - is that water is a resource that needs to be used, said Ken Slattery, water resources program manager with the Washington State Department of Ecology in Olympia. If water isn't used, it should be shifted to someone who needs it to maximize the resource, he said.

Relinquishment laws keep people from hoarding water or from speculating on a water right, Slattery said.

The threat of relinquishment is a big fear for farmers and ranchers, said Darryll Olsen, board representative of the Columbia-Snake River Irrigators Association in Kennewick, Wash.

"It's a huge disincentive to conserve water," Olsen said. Relinquishment laws can actually encourage people to use their water rights to the maximum, even if they don't need that much water, he said.

If they don't, they risk losing part of the water right that they might need in the future. The law isn't realistic for many commercial situations, and it often isn't enforced consistently, Olsen said.

Crop rotations are included in Washington state exemptions, but not clearly defined, Olsen said. For example, some crops, like winegrapes, require less water. But if the vineyard site isn't a good one, reverting to another crop could require more water. And it could take more than five years for the vineyard site to be determined unproductive.

A few years ago, CSRIA pressed for changes to Washington state relinquishment law that would increase the time frame from five years to 15 years, but it never went anywhere, Olsen said.

"In our view, the time frame should revolve around a business cycle, and that's typically 15 years," Olsen said. "If there was a longer period of time, we could get rid of many of the exemptions."

Newly enforced metering requirements could result in relinquishment, Olsen said. Metering data are intended to make sure a water right holder isn't taking more water than he's entitled to. If the data show not all water is being used, it could result in a loss of some of the right, he said.

Benson said he thinks heightened competition for a limited water supply will increase attention on use-it-or-lose-it laws. That's not to say there will be more enforcement 10 years from now, but there is likely to be more scrutiny, he said.

"There's a cost to users from having their water rights scrutinized," Benson said. "But there's a cost to everyone else from not having water rights scrutinized. That may make some people uncomfortable."

Peggy Steward is based in Ellensburg, Wash. Her e-mail address is psteward@capitalpress.com.