October 28, 2010 - The Washington State Supreme Court has ruled that key provisions of the Municipal Water Law (MWL) are facially constitutional.¹ The ruling affects water rights across Washington State, upholding the flexibility and certainty that the MWL provides to purveyors, municipalities, and other “municipal water suppliers.” However, the Court stressed that the ruling is limited to the “facial constitutional challenges” that were before the Court, leaving room for consideration of similar claims in the future that may be advanced under “as applied” challenges.

Under the MWL, a “municipal water supplier” has distinct legal rights that are largely unavailable to other entities that hold water rights in Washington State:

1. A municipal water supplier’s water rights that were perfected based on system capacity (“pumps and pipes”), rather than beneficial use, are rights in “good standing.”²
2. Municipal water suppliers may hold inchoate water rights without being subject to the state’s relinquishment statute.³
3. Municipal water suppliers may change a water right’s place of use through water system planning.⁴
4. Municipal water suppliers may expand the scope of a water right beyond the population figure in their water right document.⁵
5. Municipal water suppliers may expand the scope of a water right beyond the service connection figure in their water right document.⁶

For the first time in state history, the MWL defined “municipal water supplier”⁷ and “municipal water supply purposes.”⁸ Specifically, the MWL defined a “municipal water supplier” as any entity that (1) provides water to 15 or more residential service connections, or (2) provides water to a nonresidential population that is, on average, at least 25 people for at least 60 days a year.⁹

Because the MWL retroactively applied these provisions, opponents of the MWL argued that provisions in the MWL facially violated separation of powers.¹⁰ The opponents also argued that the provisions facially violated due process under the Washington State Constitution.

The Court unanimously rejected both facial challenges. However, it is likely that the MWL’s constitutionality will be litigated again in an “as applied” challenge. As the Court noted in its opinion, one such case, Cornelius v. Dep’t of Ecology,¹¹ has already made its way to the Washington Pollution Control Hearings Board.

While municipalities and purveyors holding “pumps and pipes” water right certificates will be encouraged by today’s ruling, an element of risk and uncertainty remains as a result of the limited scope of the legal challenges that were before the Court.

If you have comments or questions regarding the impact of this long-awaited decision, please contact Chair of Foster Pepper’s Land Use practice group, Joe Brogan (206.447.6407 | brogj@foster.com) or Jeremy Eckert (206.447.6284 | eckej@foster.com).

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¹ Lummi Indian Nation v. State, ___ Wn.2d ___ (2010), available at:
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=818096MAJ
² RCW 90.03.330(3).
³ RCW 90.14.140(2)(d).
⁴ RCW 90.03.386(2).
⁵ RCW 90.03.260(5).
⁶ RCW 90.03.260(4).
⁷ RCW 90.03.015(3).
⁸ RCW 90.03.015(4).
⁹ RCW 90.03.015(3) and (4).
¹⁰ The opponents argued that the MWL’s definition of “municipal water supplier” unsettled a previous Washington State Supreme Court decision. See, Theodoradus v. Ecology, 135 Wn.2d 582, 957 P.2d 1241 (1998).
¹¹ Cornelius v. Dep't of Ecology, No. 06-099 (Wash. Pollution Control Hr'gs Bd. Dec. 7, 2007).