(1) What is “Trust Water” and what is the Trust Water Rights Program (TWRP)?
Two statutes govern “Trust Water” (RCW 90.38.040, 90.42.040) and Trust Water has more purposes than just instream flow (90.38.040(3), 90.42040(1). However, Washington Water Trust (WWT) works with Trust Water and uses the TWRP for the purpose of instream flow restoration. The TWRP is guided by RCW 90.42. It is the administrative program overseeing both temporary and permanent water acquired by the state (or third party, such as WWT) and administered as Trust Water.
Trust Water rights offer several advantages for both landowners and stewardship efforts. There are many creeks in Washington currently lacking water for sufficient creek flows to meet the water quality and habitat needs of fish, wildlife and people. WWT typically works on creeks where water diversions from the creek are the primary explanation for those low flows. When changing the historical use of a water right to “Trust Water” for instream flow purposes (from domestic, industrial, stock-water or irrigation), either temporarily or permanently, we are returning water to a creek to help sustain biological functions it is unable to sustain without that water.
Trust Water rights are the same as other water rights in that they retain their priority date (RCW 90.42.040 (3), they have a designated place of use (a section of stream), and a designated season-of-use (the same as the original water right’s season-of-use). Their distinguishing characteristic is that they are legally recognized as “beneficially used” when instream and in the TWRP. This confirms that Trust Water rights are exempt from the “use it or lose it” relinquishment statute (RCW 90.14.071, 90.14.130, 90.14.160-180, 90.42.040(6). The difference between Trust Water rights designated for instream flow and other water rights is that the purpose-of-use, in a particular section of stream, is serving as instream flow as opposed to an out-of-stream use. The priority system still applies, and the senior Trust Water rights’ quantities must be met instream prior to junior uses out-of-stream.
WWT typically acquires water rights, on a temporary or permanent basis, by way of donation, lease or purchase, and changes their purpose and place of use to instream flow, through the TWRP, in specific sections (reaches) of stream. Restoring flows in target stream reaches can also occur via water banking and user-to-user transfers, which WWT is involved in as well.
(4) How is water “protected” instream?
There are two ways water is “protected” instream using the TWRP: (1) when one’s water right is changed, either temporarily or permanently, to be a Trust Water right, it is protected (or exempt) from the 5-year use-it-or-lose-it relinquishment statute (RCW 90.14.071, 90.14.130, 90.14.160-180, 90.42.040(6)); (2) when changed to a Trust Water right for the purpose of instream flow, Washington Department of Ecology, as the water management enforcement agent in Washington State (RCW 43.21A.064, Enforcement ), has authority to protect its instream flow purpose against junior users in that stream from withdrawing those waters in a water-short year (RCW 90.03.005, 90.03.400, 90.38.040(2), 90.42.040(3) ).
The amount of water we seek depends on the needs of the creek and the potential for habitat improvement. Working with biologists, hydrologists and local planning efforts, we identify instream flow targets based on a needed balance for instream and out-of-stream uses. In general, we’re looking for enough water to eliminate barriers to fish migration, spawning and rearing due to intermittent or heated flows. In some creeks, the flow is so limited that we prioritize finding an alternative source or point of diversion all together.
If ground water rights can be shown to have a direct connection (“hydraulic continuity”) with the surface water flow of a particular reach of stream (RCW 90.42.040(2), then they can be considered by WWT and may be eligible for transfer to the TWRP. Ground water and surface water rights may be treated very differently when it comes to market valuation (the price appraisal).
Yes – WWT can be flexible in protecting a portion of a water right (RCW 90.42.040(9). Yes – WWT will work with temporary Trust Water transfers, which revert back to the landowner at the end of the trust water period (RCW 90.42.08(9), See Q14). WWT offers a high degree of flexibility in crafting projects that work for water users and help restore flows.
(8) How can the Trust Program work for me?
Both individual water rights owners and irrigation districts can benefit from a variety of incentives when considering water for instream flow with WWT common reasons water right holders choose to work with WWT include:
- An interest/need to use less water than usual and a desire to show “beneficial use” (and not lose) that portion they are not using out-of-stream, on a temporary or permanent basis,
- An interest/need to use less water than usual and a desire to protect that water as instream flow for the stream’s benefit, on a temporary or permanent basis,
- Economic returns for water leasing or purchase may be higher than managing the water in its current purpose of use, on a temporary or permanent basis,
- Selling one’s water for an instream Trust Water purpose can take considerably less time than selling one’s water for an out-of-stream purpose. This is because expedited processing is granted to water changes if the change results in an environmental benefit, as our Trust Water flow restoration projects do (WAC 173-152-050 (2b) & (3a) and easier (WWT covers all transaction costs). There are IRS benefits to donating water to instream flow (RCW 90.42.080(7)
(9) What should I expect when working with WWT or when one puts their water into the TWRP?
When WWT works with water right holders – it is confidential. However, any legal changes to a water right – changes to Trust Water, changes in point of diversion, purpose of use, place of use, etc. – require a state review process governed by a combination of statutes. Which combination applies depends on what watershed the water is located in and what type or duration of change is being proposed (RCW 90.42.040, 90.42..080, 90.38.040, 90.38.020 , 90.03.280, , 90.03.380, Policy 1120, Policy 1200, Policy 2010). Prior to moving forward with the state review process, WWT walks the water right holder through all steps. WWT takes care of all the paperwork, including the initiating change application and asks for open dialogue with the water right holder so as to assure transparent expectations. These state policies recognize that water rights are property rights to use a public resource, and one person’s new use may not impair another person’s existing use in the same stream system or aquifer. The water right, as it is stated on its certificate, is reviewed to assure that no period of five years has passed without use of the water as it states on the certificate (unless sufficient cause for non-use is identified (RCW 90.14.140). WWT always works with the water right holder before this review occurs to help the landowner make an informed choice.
Review of use can include, but is not limited to, aerial photos, affidavits of water use, crop records, personal photos and pump records. Because of this state review process, prior to submitting a water right to this process, WWT performs a due-diligence review, in cooperation with the water holder, but otherwise similar to that of the State, to prepare the water right holder for what’s to be expected and avoid surprises.
Other steps involved in a Trust Water change, when working with WWT, include: the development of a contract between WWT and the water right holder, to assure clear expectations; shepherding the change through the Superior Court for approval and recording, if that water right is in a basin undergoing an adjudication; providing public notice; monitoring of that change, via annual site visits or meter records collection; funds transfer, if payment was arranged; and open lines of communication throughout the entire process.
Overarching and comprehensive guidelines for the management of Trust Water can be found in Ecology’s Guidance-1220 document (Guid 1210, 12/13/07 still awaiting new revisions). WWT staff receive training and regular communication on these guidelines to assure our accuracy and informative communication about state procedures.
As a 501(c)3 nonprofit, WWT pulls funds together for flow restoration work through various sources. Those include, but are not limited to: Bonneville Power Administration’s Columbia Basin Water Transaction Program administered by National Fish and Wildlife Foundation, Washington State’s Water Acquisition Program under the Department of Ecology, various mitigation funds, private foundations and private donations.
(11) What price can I get for my water right?
Not all water rights are created equal, and WWT’s diverse list of project options create many opportunities for landowners looking to gain value from their water. Variables that influence price in the water market, to various buyers, include, but are not limited to:
- the priority date of the water right relative to others on the stream or aquifer,
- whether the basin is open or closed to new water rights,
- how much “consumptive use” (Policy 1020, WWT diagram) makes up the water right,
- the location of the point of diversion and place of use on the stream relative to the proposed new point of diversion or place of use,
- accessibility and cost to alternative sources of water (municipal hookups),
- source of water – ground or surface
- transferability of the water right to other places of use
(12) How does WWT determine a water right’s market value?
There are four basic methods for valuing water: replacement cost, price comparison, hedonic valuation, and income capitalization. Not all four methods are used in any given valuation. The method used depends largely on the water right, the location, and the local water market, if it exists. Without an active water market with prices to compare to, for a permanent purchase, WWT will typically work with a third-party specialist in water markets, to value the water.
Location is a factor considered by WWT. There are many creeks in Washington currently lacking sufficient creek flows to meet the water quality and habitat needs of fish, wildlife, and people. WWT prioritizes those creeks, and places even greater emphasis in Ecology’s designated 16 Critical Basins (map). Additional considerations that play into the ecological value of a water right include, but are not limited to:
- location of the point of diversion and place of use relative to the creek and other senior water rights on the creek;
- whether multiple claims (as opposed to certificates) exist on the creek,
- whether the additional uses on the creek are metered and/or legal,
- whether the creek currently endures additional barriers to fish habitat or achieving water quality targets,
- whether other restoration projects have been planned or conducted on the creek.
If the lease or donation ends with no renewal or extension, the water right reverts to the lessor or donor in the same amount that was beneficially used prior to the lease or donation (i.e., the same amount that was accepted into the TWRP). In other words, its use prior to the donation or lease (typically the previous 5 years) can continue as it had (RCW 90.42.080(9)
(15) Can I do a Trust Water project if am part of an irrigation district or water association?
Yes – WWT can do projects with districts and often the first step is working through one supportive and interested shareholder to identify interest and opportunities. Bringing it to the Board, for collaborative discussion, is a necessary next step. WWT is happy to work with you and your District to answer any questions for these types of projects. Any changes to water rights owned by a District or Association are ultimately the decision of the collective body of users.
Water Rights 101
Questions to consider: Was water included in the deed to the property? Was your property irrigated in the last 5-10 years? Is there irrigation equipment on your property? Does your property have a well? Does the Department of Ecology have a water right or claim listed in their database for your property’s QtrQtr section? If the answer to any of these questions is “yes” – you should contact Ecology to explore the possibility that your property may indeed have a water right appurtenant to it (Ecology Water Right inquiry form).
(2) What can I do with my water right? [and / or ] What is a water right?
A water right is a right to use the public resource of water in the State of Washington (RCW 90.03, Ecology FAQs ). A water right’s claim, permit or certificate states specifically how that water is to be used, where it is to be used (the specific acreage), where it is to be diverted, when it is to be used, for what it is to be used, and any special conditions for its use. The seven main designated uses for water in Washington are: irrigation, domestic, municipal, industrial, stock-water, hydropower, and ecological streamflow. Changes to a water right require an administrative process to be reviewed by Ecology.
Yes. One must use their water right, to its full certificated extent, at least once every five years, to maintain its certificated quantities of water. There are exceptions to the “five year rule” (RCW 90.14.140). Using one’s water right can include keeping it instream for more than 5 years if one enters their water into the TWRP or works with WWT (RCW 90.14.140 (2)(a)). One must respect the priority system of users and understand whose water is senior to theirs (RCW 90.03.010). One should keep good records of water use. This can be done by photograph, pumping reports, seed receipts – any evidence that demonstrates water use as it certificated. See Ecology’s FAQs for more information about owning a water right.
(4) How can I get a water right if I need/want one?
There are two options and neither are simple. (1) Apply for a water right at the Washington State Department of Ecology, (2) Find a willing seller of an existing, valid water right and work with Ecology to determine if it can be transferred/changed to your proposed use.
(5) How do I know how much my water is worth?
See Trust Water FAQs (12) above.
(6) Can I call you with questions about my water right?
WWT is more than happy to answer questions, point you in the right direction, and/or work with you to discuss Trust Water options for your water right.Our office hours are M-F, 8 am-5 pm. Any of our four staff would love to hear from you. 509.844.4146 / 206.675.1585