Water Rights: Use Them or Lose Them

In August 1912, the Township of Twisp executed a notice of water right with intent to divert 10 cfs (0.28 m3/s) from the Twisp River for domestic, fire protection, sanitary, agricultural, mechanical, and general municipal purposes. In 1930, a certificate to change the point of diversion was issued, documenting a water right of 10 cfs (0.28 m3/s) from the river. However, the most water the city ever used was 3.85 cfs (0.11 m3/s). Sometime between 1939 and 1948, Twisp stopped diverting water from the river and began to draw water from wells. Floods in 1948 destroyed the diversionary works along the river. In 1993, Twisp applied for a new water right and to change the point of diversion of the 1912 water right from the river to two new wells. The Department of Ecology concluded that the change in diversion should be allowed but with some limitations based on historical use. Subsequently, the Pollution Control Hearings Board affirmed the department's decision but reduced the rate to 3.85 cfs (0.11 m3/s) because that amount was all the town withdrew at any time. The trial court upheld the board's decision. The state supreme court reversed the decision, stating that long periods of nonuse raise a presumption of intent to abandon a water right. According to the court, the town's nonuse of the water right for more than 45 years warranted a presumption of abandonment, which was not rebutted by the town's continuing existence as a municipality. The court emphasized that a 1967 law exempting municipal water rights from statutory relinquishment through nonuse did not apply to claims of abandonment resulting from nonuse prior to 1967.