8009

• UCREFRP Catalog Number: 8009
• Author: Natural Resources Law Center.
• Title: Restoring the Waters.
• USFW Year: 1997.
• USFW - Doc Type: Boulder, CO.
• Copyright Material: YES

With these legal and scientific concepts as
its basis, the Board created atwo-step
hydraulic continuity test for evaluating
ground water right requests. Under the
new test, the Department must, before
issuing a new ground water right:
^ Identify the surface water body to
which the aquifer proposed for use
discharges; and
^ Determine how a new use could affect
existing rights to that surface water.
If surface water flows are inadequate to
supply existing legal uses, including
instream flows, then the Department must
deny an application for a new right that
would tap water feeding that source.
The Public Trust Doctrine
In its decision, the Board accepted the
public trust doctrine as a component of
state water allocation law (see Mono Lake,
California story for discussion of the
public trust doctrine). Noting that the
principles of the public trust doctrine were
embodied in several existing water stat-
utes, the Board found that the Legislature
intended that "the public trust responsibili-
ties of the state be recognized in the
management and development of the
public's water resources." The Board's
ruling requires the Department to protect
the public's interests in navigation, recre-
ation, public health, fishing, wildlife and
vegetation whenever a proposed water
appropriation would impair a navigable
wager of the state.
The Board's hydraulic continuity ruling is
a step toward grounding water policy on
good science. Because it and the Board's
application of the public trust doctrine
could significantly limit the issuance of
nevi water rights in Washington, they will
receive attention from both the courts and
the Legislature. Legislation is already afoot
to undermine the Board's order.
For More Information Contact:
Rac:hael Paschal
Center for Environmental Law & Policy
23E~6 Eastlake, Suite 415
Seattle, WA 98102
Phone: [phone]
Fax.: [phone]
E-mail: celn@wolfnetcom
Washington Pollution C
Hearings Board
P.O. Box 40903
Lacey, WA 98504-0903
Phone: [phone]'7
33
Ambivalence on public trust
doctrine
In Washington and other states where
courts have recognized the public
trust doctrine as a component of
state water allocation law,
comsumptive water users, such as
irrigators and municipalities, have
sometimes attempted to use
legislation to undermine the court
opinions.
They find it unacceptable that a
proposed water appropriation might
be denied, or an established water
right even be reopened, on the basis
of public trust interests in navigable
waters -interests such as
navigation, recreation, public health,
fishing, wildlife and vegetation.
These attempts to reverse court
opinions illustrate the controversial
nature of the public trust doctrine.