Department of Ecology v. United States Bureau of Reclamation

The United States Bureau of Reclamation (the bureau) (plaintiff) established the Columbia River Basin Irrigation Project (the project) to foster the irrigation of farmlands along the river. Local irrigation districts (the irrigation districts) (plaintiffs) contracted with the bureau to operate and maintain irrigation facilities for use by the landowners. After initial irrigation, some water would seep into the ground, accumulate on the surface, or return to the original water source (waste, seepage, or return flow water—WSRF water). The project was engaged in recapturing WSRF water. J. M. Hanson, a local farmer, sought to add to his appropriative water rights by diverting water from a stream that crossed Hanson’s property. The stream’s water included WSRF water that, absent diversion, would travel back to the Columbia River. Hanson sought a permit from the Department of Ecology (the department) (defendant) for the added appropriation. The bureau and the irrigation districts objected, claiming the bureau had prior appropriative water rights to the WSRF water. The department granted Hanson’s application, and the bureau and the irrigation districts appealed to the Pollution Control Hearings Board (the board). The board reversed the department’s decision in granting the bureau’s and irrigation districts’ motion for summary judgment. An appeal by the department to the superior court resulted in reinstating the department’s initial decision. The irrigation districts appealed to the Washington Supreme Court. The irrigation districts argued that as long as the WSRF water was on the landowner’s property, the water was subject to appropriation by the landowner—the geographical test. The department argued that control or possession of the water is the determining factor—the control or possession test. Therefore, when the water has been relinquished or lost without intent to recapture, the rights to the WSRF water are lost, regardless of their geographic location. The department asserted that the bureau and irrigation districts had forfeited control upon delivery of the water for its initial irrigation purpose.