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State water laws encourage industry

— Washington state law on water rights is focused on using water to improve the economy, according to Peter Mohr, an attorney at Jordan Ramis PC.

Mohr spoke to grape growers at the annual meeting and trade show of the Washington State Grape Society yesterday, explaining how Washington’s water laws developed to reward industrious use of water.

“Water is use it or lose it in Washington,” he said. “The laws support those who built the infrastructure first and keep using the water.”

Water rights were historically conferred on the basis of who used the water first. The “first in time, first in right” concept means that a piece of land that was first irrigated in 1890 has more right to its water than a piece of land first irrigated in 1900.

According to Mohr, case law favored land-owners who were around first until the law was codified in 1917, confirming rights to the oldest claims and establishing a method to make new claims. The oldest water rights in the state are called senior rights.

Mohr said water in the state belongs to the public unless it is being controlled by a water rights holder.

“Water diverted is property,” he said. “Once in your possession, water is yours as long as you control it.”

He said the rights then must be used in order to secure them. If a rights holder stops using water for five years, the right is forfeited.

“You might get away with it, and start using the water again, but if anyone can prove you didn’t use your water for five years, the state can remove your right to the water,” Mohr said.

“In Washington you can’t rehabilitate the right by using the water again. There is no statute of limitations. If you stop using the water for five years straight, you can lose the right to it.”

He said the loss of water rights is part of the way Washington law is geared toward industry. Not using the water for five years indicates a lack of industry.

Mohr also talked about how confusing water law can be with new issues cropping up, including endangered species, clean water laws and the possible impacts of climate change.

“This is the big unknown,” he said about climate change. “Storage, storage, storage, storage... it doesn’t have to be a reservoir, you can find other ways. But storage of water will become very important in the future.”

Above all, Mohr stressed that farmers should know the value of their water rights. He said water is likely to become more valuable as the years pass, and knowing how much a water right is worth is as important as knowing the value of a tractor.

“Senior water rights are only going to increase in value,” he said. “It is a commodity, and there is a lot you can do with it. Make sure you maintain your rights and include them in any paperwork.”

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