Today, the Washington State Supreme Court issued the long awaited decision in Lummi Indian Nation, et al., v. State of Washington.  This landmark water rights decision upholds the Municipal Water Law ("MWL") against all of the Plaintiffs’ facial constitutional challenges and resolves disputes and uncertainties over the water rights of public water systems in this state that began more than a decade ago.  GordonDerr LLP represented the Washington Water Utilities Council ("WWUC") which joined the State in defending the MWL.

This decision is significant to water utilities, businesses, local jurisdictions, and the public throughout the State.  It upholds a landmark law that facilitates efforts to provide the State’s growing communities with healthy and safe drinking water while simultaneously requiring public water systems to be good stewards of a limited resource.  Had the plaintiffs been successful or if the trial court’s decision was left intact, public water systems would have lost important legislation that facilitates their efforts to serve our state’s growing population.  It would have jeopardized land use planning in our urban areas that was premised, in part, on the availability of water from municipal water suppliers.  While it does not answer all outstanding issues concerning municipal water and analysis of the decision will now begin, the Court’s decision restores the certainty that the legislature intended to provide.

The MWL, the subject of the lawsuit, is significant legislation governing Washington's public water utilities that provide water supply to more than 80% of the state's population. The purpose of the MWL is twofold. The MWL requires municipal water suppliers to implement water use efficiency and conservation measures. Simultaneously, the MWL provides certainty and flexibility by clarifying long-standing ambiguities in the law governing water rights held by municipal water suppliers and resolving uncertainties left in the wake of the Supreme Court's 1998 decision in Ecology v. Theodoratus.   

To provide certainty and flexibility to municipal water suppliers, the law: defines the types of public water systems that qualify as municipal water suppliers; clarifies that a unique class of water rights often held by municipal water suppliers (known as “pumps and pipes” certificates) are rights in good standing; and includes other provisions that provide efficiency in the administration of municipal water rights including establishing the place of use where water rights may be exercised. 

The Plaintiffs in the case were a number of Tribes and environmental groups. They challenged eight provisions in the law that were designed to provide certainty and flexibility to municipal water suppliers.  The Plaintiffs argued that those provisions, on their face, violated separation of powers and due process under the constitution.  The State Departments of Ecology and Health were named defendants in the lawsuit.

The case was before the Supreme Court on cross-appeals of the King County Superior Court's split decision on summary judgment, dated on June 11, 2008.  In its decision, the Supreme Court reversed the trial court’s ruling that two provisions of the MWL violated separation of powers.  The court also affirmed the trial court’s rejection of the remaining constitutional challenges.