Welcome to the digital.law repository at the University of Washington

Washington’s Water Right Impairment Standard: How the Current Interpretation Impedes The State’s Policy of Maximizing Net Benefits

Show simple item record

dc.contributor.author Rajnus, Matthew
dc.date.accessioned 2014-07-23T17:51:58Z
dc.date.available 2014-07-23T17:51:58Z
dc.date.issued 2014-07
dc.identifier.citation 4 Wash. J. Env. Law & Pol'y 2014 en_US
dc.identifier.issn 2160-4169 (Online)
dc.identifier.uri http://hdl.handle.net/1773.1/1361
dc.description Volume 4, Issue 1, July 2014 en_US
dc.description.abstract ABSTRACT: 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;2 then, the Washington Supreme Court concluded that any impact constituted impairment;3 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.4 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. en_US
dc.language.iso en_US en_US
dc.publisher Seattle, WA: University of Washington School of Law en_US
dc.subject Comment en_US
dc.title Washington’s Water Right Impairment Standard: How the Current Interpretation Impedes The State’s Policy of Maximizing Net Benefits en_US
dc.type Article en_US
dc.rights.holder Copyright 2014 by Washington Journal of Environmental Law & Policy. en_US

Files in this item

This item appears in the following Collection(s)

Show simple item record

Search digital.law

Advanced Search


My Account