June 12, 2008 - King County Superior Court Judge Jim Rogers issued a split decision yesterday in the closely watched litigation concerning the 2003 Municipal Water Law. Click here to see Judge Rogers' decision.

In 2003, the State Legislature amended the State Water Code to, among other things, provide some certainty to municipal water purveyors and other water right holders holding what are referred to as "pipes and pumps" water right certificates. In many cases, purveyors and municipalities hold "pipes and pumps" water rights for future water supply, but have not yet put those rights to full use. In 2003, amendments to Chapter 90.03 RCW recognized those rights as valid water rights or rights in "good standing," protecting them from relinquishment.

Judge Rogers ruled that the Legislature violated the state constitution in adopting the definitions of "municipal water supplier" and "municipal water supply purposes" and the pumps and pipes "good standing" provision. The Court held that the definitions violate the separation of powers doctrine because they have retroactive effect and attempt to overrule an interpretation of the Water Code in Department of Ecology v. Theodoratus, 35, Wn.2d 582, 957 P.2d 1241 (1998). The extension of the holding in Theodoratus to rights held for municipal purposes and the requirement for purveyors to put water to actual "beneficial use" has been the subject of intense legal debate.    

Of the eight provisions challenged by the plaintiffs, three were held to violate the constitution and five were upheld. This decision will have an immediate and profound impact on water purveyors and municipalities planning for growth across the state.

For additional information regarding this complex ruling, contact Foster Pepper Environmental Attorneys: Joe Brogan (206.447.6407) or Lori A. Terry (206.447.8902).