Amicus Brief: In Support of WA Ecology & Pollution Control Hearings Board

The case began when Burbank and Pasco submitted applications to transfer a water right and change its place of use. Burbank was attempting to transfer part of its water rights to the city of Pasco, in exchange for $550,000, and change the place of use from Burbank’s municipal service area to Pasco’s municipal service area.  After several back-and-forth decisions between lower authorities, Ecology appealed the case to the Court of Appeals.

Our amicus brief agreed with Ecology’s argument that the water right would be unlawfully enlarged and that the Superior Court mishandled certain aspects of the procedure involved. Our amicus also brought forth and focused on the issue of water speculation. Water speculation occurs when water resources are either bought or held on to and then used for profit rather than for beneficial use. In this case, Burbank’s water rights were protected from relinquishment because they were municipal water rights. Therefore, even though Burbank hadn’t used the water in several decades the right hadn’t been relinquished. CELP argued that any transfer of unused water municipal water rights should be subject to high levels of scrutiny during the transfer process. In this case, and likely other cases, municipalities transferring water should be seen as a form of speculation. It does not seem logical that the municipal water rights protected from relinquishment to allow for municipal growth in the future should be transferable, especially if the municipal water right holder is going to profit from that transfer. It would encourage municipalities to request more water than they actually foresee needing in the future and then sell those rights to the highest bidder years or decades down the road. This is the very definition of speculation.

CELP has worked hard in the past few years to being to build up the anti-speculation doctrine in Washington. The courts, legislature, and governor’s office have all stated that speculation in water must be avoided. We felt that this argument needed more attention than was given in Ecology’s briefs and therefore decided to submit the amicus brief.