Water Issues

General Water Right Adjudications and Water Courts: Background Information

(Links to related documents are included at the end of this document)

     General water right adjudications are judicial proceedings that conclusively determine the rights and priorities of water rights claimed within a particular geographical region, often a water basin spanning multiple counties.  These regional cases, which often involve hundreds or thousands of litigants and massive volumes of documentation, pose such demands on judicial resources that only one major adjudication has been initiated since 1977 – the Acquavella case in Yakima County Superior Court.  The Acquavella litigation, underway since 1977 and due to be wrapped up in the next few years, is addressing 4,000 water right claimants.  State-wide, however, approximately 170,000 other water right claims still need adjudication.  It has been estimated that at the current pace it will take over 200 years to fully adjudicate all the water right claims in the state.

     Efforts have been underway within the legislative and executive branches to find ways to speed up this pace and provide greater certainty to water rights held around the state.  As a result of these efforts, a multi-branch Water Disputes Task Force was created in 2002.  In December 2003, the Task Force recommended the creation of a separate, specialized, state-wide water court to handle more water right adjudications more efficiently.  Immediately following on the heels of this report, the Legislature introduced several bills aimed at reducing the backlog of general water right adjudications, including several bills on water courts.

      Although the bills addressing general adjudications did not pass in 2004, the Board for Judicial Administration (BJA), in preparing for the 2005 legislative session, undertook to develop a judicial policy statement on water courts and other related proposals for speeding up general adjudications.  As a first step, the BJA created a Water Court Work Group to prepare a report with background information and recommendations for a judicial response to the recent proposals.

      The BJA’s Water Court Work Group completed its report in June 2004.  The report included background information on:  Washington’s water laws; general adjudication processes; the differences between general adjudications and other cases heard in superior court; and, the need for specialized expertise in judges, commissioners, clerks, and other court personnel hearing and processing these cases.  The report recommended a set of criteria for evaluating proposals for reforming the general adjudication process and posited advantages and disadvantages for several different proposals.  The report recommended that, if the other branches of government decide to increase the pace for adjudicating water right claims around the state, a specialized water court should be created to hear the increased number of general adjudications.  The report also made several recommendations for how such a court might be implemented.  The report also set forth recommendations for changing general adjudication procedures, including a recommendation about affidavits of prejudice.  Several appendices to the report present additional background information on water law and general adjudications.

      The BJA considered the report from the Water Court Work Group and adopted a judicial policy statement on general water right adjudications on July 16, 2004.  The policy statement distilled the work group’s recommendations into a two-page set of principles.  The policy statement supports the creation of a specialized water court if the legislative and executive branches decide to increase the pace of general adjudications.  The policy statement spells out some of the features for a proposed water court, including the selection of the water court judges, the length of their terms of office, the types of cases to be heard, the need for State funding, the appointment of experienced court commissioners, the creation of a separate and adequately funded clerk’s office, and the creation of regional divisions. 

      The BJA’s policy statement represents the official position of the state judiciary.  The report from the Water Court Work Group, while not officially adopted by the BJA, was the source from which the BJA drew its policy statement.  The BJA slightly revised two aspects of the work group’s list of recommendations – the BJA left open the possibility of judges’ terms of office being longer than six years, and they added a seventh factor to the list of criteria for evaluating future proposals in this area.  The Work Group’s report may be useful as a source of background information and as a means for further understanding the principles stated in the BJA’s policy statement.

      During the 2005 legislative session, these and similar issues will likely be the subjects of proposed legislation.  The following documents are included here as background information for the continuing discussion of water court-related issues:

1. The BJA’s policy statement on water courts

2. The Water Work Group’s report to the BJA, and its appendices

3. The final report in 2003 from the Water Disputes Task Force

4. Bills from the 2004 session relating to water courts and related measures intended to provide greater certainty to water rights

5. An analysis of the lack of a right to a jury trial in general water right adjudications

6. For additional background on water law issues, see the appendices to the Water Court Work Group’s report.