OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- WATER ‑- ISSUANCE OF LIMITED TERM WATER USE PERMITS

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- WATER ‑- ISSUANCE OF LIMITED TERM WATER USE PERMITS

If, in order to attain "maximum net benefits" and protect the public welfare and interest against the long range detrimental effects of a perpetual water use not so restricted, the state department of ecology, in issuing a surface water right permit pursuant to RCW 90.03.290, determines to include a provision authorizing use of such waters unconditionally for specified initial period of time (e.g., fifty years), with any authorization to withdraw for further periods of time made dependent upon subsequent determinations by the department involving public needs for the waters involved, that action is likely to be upheld by the courts.

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                                                                    June 4, 1976

Honorable John A. Biggs
Director, Department of Ecology
Lacey, Washington 98504

                                                                                                                 Cite as:  AGO 1976 No. 12

Dear Sir:

            By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:  May the state department of ecology, pursuant to RCW 90.03.290, issue a surface water right permit which authorizes the use of public waters unconditionally for a specified initial period of time (e.g., fifty years) and for further periods of time thereafter unless the department then determines a different use of waters is required to satisfy a higher beneficial use.

            It is our opinion, for the reasons set forth in our analysis, that this general approach, under appropriate factual circumstances, is one likely to be upheld by the courts.  In so advising you with regard to the above question, however, we caution at the outset that this opinion will not purport to pass upon the validity of any specific implementation of the legal principles involved ‑ either (1) in terms of a particular rule or regulation or (2) from the standpoint  [[Orig. Op. Page 2]] of whether those principles are or are not applicable to any given factual situation arising out of a specific application for a water right permit.

                                                                     ANALYSIS

            I. Introduction

            In order to set the stage for our response to your question it is necessary to begin with a brief historical review of state water rights law.

            A.State Water Rights Law ‑ The Beginnings

            Since the earliest days of our state's history the two basic water rights doctrines in effect in the various states ‑ the "riparian" and the "appropriation" ‑ have been recognized as a part of Washington law.  In re Alpowa Creek, 129 Wash. 9, 13, 224 Pac. 29(1924).  The riparian doctrine is based on the concept that a person who owns lands bordering a lake or stream has rights of use to the waters of that body.  Crook v. Hewitt, 4 Wash. 749, 750, 31 Pac. 28 (1892).  The appropriation doctrine, rather than being based on geographical proximity, is founded on the concepts of time and use; i.e., rights are established by indicating an intention to divert water for a beneficial use and then carrying out that intention within a reasonable time.  Hutchins, Selected Problems in the Law of Water Rights in the West, 64 (1942).  Generally, rights established under the appropriation doctrine have been considered perpetual in terms of time.  Arizona v. California, 283 U.S. 423, 459, 51 S.Ct. 522, 75 L. ed. [[L.Ed.]]1154 (1930).

            In the early years of statehood, many water rights were established in our state under the two best known variations of the appropriation doctrine.  The first, referred to as the "custom" variation, had no statutory base but was rather a doctrine recognized by the state's courts and rooted in the local communities in the arid parts of the state.  See, Ellis v. Pomeroy Improvement Co., 1 Wash. 572, 21 Pac. 27 (1889); andThorpe v. Tenem Ditch Company, 1 Wash. 566, 20 Pac. 588 (1889).  The second, known as the "notice" variation, was statutorily based.  See, chapter 142, Laws of 1891.  This variation provided, generally, that if a notice of claim to water was posted at a point of diversion and filed in the county auditor's office and thereafter the water claimed was  [[Orig. Op. Page 3]] put to beneficial use with reasonable diligence, a right to make use of water would be established.  Grant Realty Co. v. Ham, Yearsley and Ryrie, 96 Wash. 616, 165 Pac. 495 (1917); see also, chapter 21, Laws of 1889.

            Both the riparian doctrine and the several appropriation doctrine variations provided a base for establishing rights to use waters of the state until 1917.  In re Crab Creek and Moses Lake, 134 Wash. 7, 235 Pac. 37 (1925).  Until that year the establishment of a water right under the two appropriation variations, and the other bases then in effect, did not require the approval of any governmental agency, state or otherwise.

            B.The Water Code of 1917

            In 1917 the Washington legislature drastically altered the state's water rights allocation law by enacting the state's first comprehensive "water code," chapter 117, Laws of 1917.  See,West Side Irrigation Co. v. Chase, 115 Wash. 146, 196 Pac. 666 (1921).  Now codified in chapter 90.03 RCW, the new law provided for a comprehensive, centralized program which vested extensive authority in a single state agency to deal with a broad range of surface water rights matters ranging from the general adjudication of existing water rights to the regulation of competing rights.

            The first section of the 1917 code, now codified in RCW 90.03.010, provides in pertinent part that:

            ". . .  Subject to existing rights all waters within the state belong to the public, andany right thereto, or to the use thereof,shall be hereafter acquired only by appropriation for a beneficial use and in the manner provided and not otherwise; . . ."  (Emphasis supplied.)

            The "manner provided" is the permit system set forth in RCW 90.03.250, et seq.  The first sentence of RCW 90.03.250 provides that:

            "Any person, municipal corporation, firm, irrigation district, association, corporation or water users' association hereafter desiring to appropriate water for a beneficial useshall make an application to the  [[Orig. Op. Page 4]] supervisor of water resourcesfor a permit to make such appropriation, and shall not use or divert such waters until he has received a permit from such supervisor as in this chapter provided. . . ."  (Emphasis supplied.)

            Notice that an application has been filed must then be published in a newspaper of general circulation in the local area once a week for two consecutive weeks and an investigation pertaining to the application must be conducted by the department of ecology,1/ as provided in RCW 90.03.280 and RCW 90.03.290.  Following this, the department is then in a position to rule upon the application.  The criteria for making such ruling are also found in RCW 90.03.290 which provides, in pertinent part, that the director shall:

            ". . . make and file as part of the record in the matter, written findings of fact concerning all things investigated, and if he shall find that there is water available for appropriation for a beneficial use,and the appropriation thereof as proposed in the application will not impair existing rights or be detrimental to the public welfare, he shall issue a permit stating the amount of water to which the applicant shall be entitled and the beneficial use or uses to which it may be applied:  Provided, That where the water applied for is to be used for irrigation purposes, it shall become appurtenant only to such land as may be reclaimed thereby to the full extent of the soil for agricultural purposes.  But where there is no unappropriated water in the proposed source of supply,or Where the proposed use conflicts with existing rights, orthreatens to prove detrimental to the public interest, having due regard to the highest feasible development of the use of the waters belonging to the public, it shall be  [[Orig. Op. Page 5]] duty of the supervisor to reject such application and to refuse to issue the permit asked for. . . . ." (Emphasis supplied.)

            If a permit is granted, the actual physical construction activities pertaining to the making of beneficial use of water authorized by the permit must then be initiated by the permit holder within a time prescribed by the department.  Thereafter, the work must be "prosecuted with diligence" and completed within the time prescribed by the department.  RCW 90.03.320.  Upon a satisfactory showing by the permittee that the right to use public waters embodied in the permit has thus been "perfected," the department is to issue a "water right certificate" to the holder of the permit.  RCW 90.03.330.

            C.  The Ground Water Code of 1945

            During the five decades the state legislature enacted only one further major piece of water rights legislation.  In 1945, the water code of 1917 was supplemented2/ by the enactment of legislation pertaining to the administration and regulation of "public ground water."3/   Section 1, chapter  [[Orig. Op. Page 6]] 263, Laws of 1945.  Now codified in chapter 90.44 RCW, this new legislation provided that:

            ". . . no withdrawal of public ground waters of the state shall be begun, nor shall any well or other works for such withdrawal be constructed, unless an application to appropriate such waters has been made to the supervisor of water resources and a permit has been granted by him as herein provided: . . ." RCW 90.44.050.4/

             RCW 90.44.060 provides the procedures for obtaining a permit authorizing the withdrawal of ground water, in pertinent part, as follows:

            "Applications for permits for appropriation of underground water shall be made in the same form and manner provided in RCW 90.03.250 through 90.03.340, as amended, the provisions of which sections are hereby extended to govern and to apply to ground water, or ground water right certificates and to all permits that shall be issued pursuant to such applications, and the rights to the withdrawal of ground water acquired thereby shall be governed by RCW 90.03.250 through 90.03.340, inclusive: . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 7]]

            In sum, the permit system of the surface water code of 1917 was thus extended by this 1945 act to ground waters.

            D.The Water Resources Act of 1971

            The most recent major water rights legislation to be passed is the Water Resources Act of 1971, chapter 225, Laws of 1971, 1st Ex. Sess., now codified in chapter 90.54 RCW.5/ The purpose of this act is set forth in RCW 90.54.010 as follows:

            "The legislature finds that proper utilization of the water resources of this state is necessary to the promotion of public health and the economic well-being of the state and the preservation of its natural resources and aesthetic values. . . . .It is the purpose of this chapter to set forth fundamentals of water resource policy for the state to insure that waters of the state are protected and fully utilized for the greatest benefit to the people of the state of Washingtonand, in relation thereto, to provide direction to the department of  [[Orig. Op. Page 8]] ecology and other state agencies and officials,in carrying out water and related resources programs."  (Emphasis supplied.)

            The "fundamentals" thus referred to are then listed in RCW 90.54.020 which reads, insofar as is material for purposes of this opinion, as follows:

            "Utilization and management of the waters of the state shall be guided by the following general declaration of fundamentals:

            "(1) Uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, and thermal power production purposes, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state, are declared to be beneficial.

            "(2) Allocation of waters among potential uses and users shall be based generally on the securing of the maximum net benefits for the people of the state.  Maximum net benefits shall constitute total benefits less costs including opportunities lost. . . ."

            Following this section are two sections which place significant obligations upon the department of ecology.  RCW 90.54.030 provides, in part:

            "For the purpose of insuring that the department is fully advised in relation to the performance of the water resources program provided in RCW 90.54.040, the department is directed to become informed with regard to all phases of water and related resources of the state.  To accomplish this objective the department shall:

            "(1) Collect, organize and catalog existing information and studies available to it from all sources, both public and private, pertaining to water and related resources of  [[Orig. Op. Page 9]] the state;

            "(2) Develop such additional data and studies pertaining to water and related resources as are necessary to accomplish the objectives of this chapter;

            "(3) Determine existing and foreseeable uses of, and needs for, such waters and related resources;

            "(4) Develop alternate courses of action to solve existing and foreseeable problems of water and related resources and include therein, to the extent feasible, the economic and social consequences of each such course, and the impact on the natural environment."

            RCW 90.54.040(1) and (2) then provide that:

            "(1) The department, through the adoption of appropriate rules, is directed, as a matter of high priority to insure that the waters of the state are utilized for the best interests of the people, to develop and implement in accordance with the policies of this chapter a comprehensive state water resources program which will provide a process for making decisions on future water resource allocation and use.  The department may develop the program in segments so that immediate attention may be given to waters of a given physioeconomic region of the state or to specific critical problems of water allocation and use.

            "(2) In relation to the management and regulatory programs relating to water resources vested in it, the department is further directed to modify existing regulations and adopt new regulations, when needed and possible, to insure that existing regulatory programs are in accord with the water resource policy of this chapter and the program established in subsection (1) of this section."

             [[Orig. Op. Page 10]]

            II.Question Presented

            With this legal background in mind we turn to your specific inquiry; i.e., the power of the department of ecology to issue a surface water use permit under RCW 90.03.290 authorizing an unconditional right to use water for a specified initial period of time and then for further periods of time thereafter". . . unless the department then determines a different use of the waters to which the permit relates is required to satisfy a higher beneficial use."  Your question pertains to the validity of this general approach.

            III. Discussion

            As we have seen, the 1917 water code drastically modified our state's preexisting water rights laws.  Not only was the power to regulate existing rights thereby vested in a central state agency but, for the first time in the state's history, new surface water rights could be established only with the approval of that state authority.  Under the new water right permit system, the heart of the code, a state official was given powers involving great discretion.  The issuance of a water right permit was made dependent upon whether the state administrator determined a proposed use would be "detrimental to the public interest, having due regard to the highest feasible development of the use of the waters belonging to the public."  RCW 90.03.290,supra.  The ability to apply criteria of this general nature gives the decision maker (now the department of ecology) substantial power in administering the permit system of RCW 90.03.250, et seq.

            Our task here is to determine whether that grant of very significant discretionary power by the legislature includes the authority, under the permit system of the 1917 code, to issue a permit containing a "term of time" condition such as you propose to include, in certain situations, in future water withdrawal authorizations.  Of course, if chapter 90.03 RCW dealt directly with the issue, the express wording thereof would control and our investigation would end.  However that law is completely silent on this issue.  No mention is made either of concepts of perpetuity or of time limitations anywhere therein.  Accordingly we must look to indicators outside the express terms of the statutes themselves for guideposts pointing to legislative intent.

            An examination of the legislative history recorded in the  [[Orig. Op. Page 11]] Senate and House Journals for 1917 reveals nothing of material value to our inquiry.  The same is true of the Report of Washington Water Code Commission, submitted to Governor M. E. Hay in 1914, which recommended the passage of a water code somewhat similar to the 1917 code.  Nor have we found any state appellate court decisions bearing upon the question.  Likewise, the interpretive rules and other written general policy statements of the various agencies that have administered the water code over the past six decades, which we have examined, also offer little assistance.6/   When, however, we turn to the important area of administrativepractice, as carried out by those agencies over the years, especially prior to the creation of the department of ecology in 1970, and the passage of the Water Resources Act of 1971, our search becomes somewhat more fruitful.

            An examination of copies of various water right permits issued over the years, pursuant to RCW 90.03.290, discloses that conditions have in the past been imposed in a wide range of subject areas.  For example, conditions have often been included that set an instantaneous minimum stream flow (in cubic feet per second) which, when reached, operated to terminate the authority embodied in a permit to divert waters as long as the stream flow condition existed.  Likewise, conditions have been included requiring the construction of water diversion works with certain features or prohibiting certain works; e.g., screening of intake structures and prohibiting the construction of dams or other impoundment structures.  Conditions involving mandatory water releases from impoundment structures and limiting periods of appropriation have commonly been placed in permits.  Other examples of conditions involve sealing requirements for offstream ponds and specific depth or site requirements for ground water developments.  Yet there is clearly noexpress authorization in RCW 90.03.250 et seq., to include any of these categories of conditions.

            In the area of permit conditions involving the issue of "perpetuity," past surface water permits generally have  [[Orig. Op. Page 12]] contained no departmentally imposed time limitsas such However, principally in the case of analogous ground water permits but occasionally with respect to surface water permits as well, there have in the past been issued permits containing provisions limiting the term of withdrawal similar to the following example:

            "Water allotted for irrigation purposes in this permit may be used until such time as the Columbia Basin Project waters are made available for the lands described herein as the place of use.  At that time the volumetric withdrawal shall be proportionately reduced to correspond to the acreage which is not served by project waters."

            Such limited term provisions in several variations have been included in a number of permits, issued during the 1950's, 1960's and 1970's, authorizing withdrawal of public waters for use for irrigation within areas served by public water distribution systems, normally irrigation districts and especially those within the Columbia Basin Project.

            From this description of past administrative activity it seems apparent that the agencies which administered the water code prior to the department of ecology (such as the department of conservation and development, department of conservation, and the department of water resources) believed that their power to condition a permit to achieve the objectives of the code was broad enough to include a number of conditions not explicitly set forth in the law, including the issuance of permits, in certain situations, of a nonperpetual nature in terms of time.  Although not conclusive, this past administrative practice is of considerable legal significance.  As was explained inBradley v. Dept. Labor & Ind., 52 Wn.2d 780, 786, 329 P.2d 196 (1958):

            "Where a statute is ambiguous, construction placed upon it by the officer or department charged with its administration is not binding on the courts but is entitled to considerable weight in determining the legislative intention, and the persuasive force of such interpretation is strengthened when the legislature, by its failure to amendor by amending some other particular without repudiating the administrative construction, silently acquiesces in the administrative interpretation.  White v. State, 49 Wn. (2d) 716, 306 P. (2d) 230."  (Emphasis supplied.)

             [[Orig. Op. Page 13]]

            The foregoing administrative practice is also consistent with several court decisions which have held that agencies administering water appropriation programs under a statutory standard involving the "public welfare" have great discretion in developing programs to achieve that end.  Thus, inKirk v. State Board of Irrigation, 90 Neb. 627, 134 N.W. 167 (1912), the Nebraska supreme court, construing a water code with pertinent language almost identical to Washington's surface water code of 1917, upheld the power of Nebraska's administrator to include conditions and limitations in a permit.  In sustaining the administrator's power to condition a permit by barring out of state use or transmission of electricity generated with the water authorized for use by the permit, the court provided the following instructive analysis at 134 N.W. 169:

            ". . .  Has the state granted to the state board of irrigation power to impose such conditions upon the appropriation of the water of its streams to beneficial use? We think there is no doubt of the power and duty of the state board of irrigation to determine such questions.  'If there is unappropriated water in the source of supply named in the application, and if such appropriation is not otherwise detrimental to the public welfare, the state board, through its secretary, shall approve the same.'  Comp. St. 1911, ch. 93a, art. II, sec. 28.  Thus the state board of irrigation is made the guardian of the public welfare in the appropriation of the public waters of the state,and this necessarily devolves upon that board a large discretion in such matters. . . ."  (Emphasis supplied.)

            The court then concluded with this most significant statement:

            ". . .  If the public welfare demands it, they may grant a qualified and limited right of appropriation and in the beneficial use of the water so appropriated."

            The Nebraska supreme court is not alone in this view of a water code like ours.  See, for example, Tanner v. Bacon, 103 Utah 494, 136 P.2d 957, 960 (1943), and note, particularly, the concurring opinion of Justice Larson which says, at pp. 966-967:

             [[Orig. Op. Page 14]]

            ". . .  The state, as trustee for the people, must so administer its trust as not to permit its misuse, or its use in any way adverse to the interests of the public.  So the state engineer and the court are made the guardians of the public welfare in the appropriation of the public waters of the state, and this necessarily involves a large discretion in such matters.  If the public welfare demands, they may grant a qualified and limited right of appropriation and in the beneficial use of the water so appropriated. . . ."

            This concurring opinion reflects the views expressed in the opinion of the court at 136 P.2d 962, that:

            "These statutes may not vest the state with proprietary ownership of the water but they clearly do enjoin upon the state the duty to control the appropriation of the public waters in a manner that will be for the best interests of the public. . . ."

            Other cases of similar import include East Bay M.U. Dist. v. Dept. of P. Wks., 1 Cal.2d 476, 35 P.2d 1027 (1934);Young & Norton, et al. v. Hinderlider, 15 N.M. 666, 110 Pac. 1045 (1910); Cookinham, et al. v. Lewis, et al., 58 Or. 484, 114 Pac. 88, 115 Pac. 342 (1911); andSmyth v. Jenkins, 208 Or. 92, 299 P.2d 819 (1956).

            Our research has also disclosed a closely associated case expressly holding that the power to deny an application for a water right permit includes, by implication, the power to approve an application with appropriate conditions.  See,City of Albuquerque v. Reynolds, 71 N.M. 428, 379 P.2d 73 (1962), in which the court upheld the power of New Mexico's "state engineer" to condition a water right permit to protect "existing rights" on the basis of the following analysis, at page 81:

            ". . .  Having the statutory power and duty to prohibit the taking, by denying the applications in toto if necessary to protect existing rights, the state engineer has reasonably exercised his power by imposing suitable conditions so as to permit such taking as will not result in impairment.  This power to impose suitable conditions is  [[Orig. Op. Page 15]] inherent in the broader power to prohibit and may also be expressly covered by that portion of § 75-11-3, supra, which provides that, under the conditions set out, the state engineer shall grant the said application and issue a permit to the applicant to appropriate 'all or a part of the waters applied for. . . .'"  (Emphasis supplied.)

            The wording of New Mexico code involved in that case7/ was similar to the protection of "existing rights" provision of RCW 90.03.290.

            These cases construing water rights codes in other states are also in accord with the general view that where administrative powers are granted for the purpose of effectuating broad regulatory programs essential to the public welfare, a liberal interpretation will be given to such powers to insure that the full benefit of the programs are realized,  1 Cooper,State Administrative Law 85 (1965).  Liberal constructions have been consistently given to natural resource conservation and management statutes in order that the objectives of those statutes may be accomplished.  3 Sands,Sutherland Statutory Construction 71.14 (1974).

            The department of ecology, like other state agencies, has not only such powers as have been expressly granted to it by the legislature but those granted by necessary implication as well.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 539, 304 P.2d 663 (1956).  If is our opinion the above discussed points ‑ especially taking into account the broad grant of discretionary power vested in the department by RCW 90.03.290 to protect the public welfare and interest and the rule of liberal construction to be applied to that grant ‑ are supportive of a conclusion that the water code of 1917 impliedly authorizes the department (as present administrator thereof) to limit the term of permits issued under RCW 90.03.290 to something less than perpetuity in order to attain "maximum net benefits" and protect the public welfare and interest against the long range detrimental effects of a perpetual water use not so restricted.

            A review of the Water Resources Act of 1971 is also supportive  [[Orig. Op. Page 16]] of this conclusion.  First, repeated for ease of reference, RCW 90.54.010 sets forth the purpose of that act as being:

            ". . .to set forth fundamentals of water resource policy for the state to insure that waters of the state are protected and fully utilized for the greatest benefit to the people of the state of Washington and, in relation thereto, to provide direction to the department of ecology and other state agencies and officials, in carrying out water and related resources programs."  RCW 90.54.010 (Emphasis supplied.)

            The first sentence of RCW 90.54.020 then provides that these "fundamentals," are to guide the department of ecology in the "utilization and management of waters of the state."  We next specially note RCW 90.54.020(2) which provides:

            "Allocation of waters among potential uses and users shall be based generally on the securing of the maximum net benefits for the people of the state.  Maximum net benefits shall constitute total benefits less costs including opportunities lost."

            This provision is of importance to the inquiry at hand because it supplements the existing standards to be used in the allocation of water rights in the future.  RCW 90.54.020(2) requires the department of ecology to apply the "maximum net benefits" criteria, as a public interest consideration, to rulings upon applications for water rights under RCW 90.03.290.  Similarly, RCW 90.54.040 makes it clear that the fundamentals of RCW 90.54.020 are intended to be more than general statements of public policy with no direct effect on the department's operations.  By subsection (1) thereof, the department is directed, as a "matter of high priority," to develop and implement a comprehensive water resources program, incorporating the aforementioned fundamentals among others, in order to provide it with a process for decision making on future water allocation and use.  Subsection (2) further directs the department to adopt regulations, when needed and possible, pertaining to water resource management and regulatory programs which it administers to insure that they "are in accord with the water policy of this chapter and the program established in subsection (1)."

             [[Orig. Op. Page 17]]

            The significant and substantial impact of the Water Resources Act of 1971 upon the department's implementation of the permit system of RCW 90.03.250 is shown by the Washington supreme court's decision in Stempel v. Dep't of Water Resources, 82 Wn.2d 109, 508 P.2d 166 (1973), the first case construing the act.  InStempel, a water right permit issued by the department of water resources (predecessor to the department of ecology) pursuant to RCW 90.03.250 was held invalid because the newly added "vigorous" requirements contained in the Water Resources Act of 1971 were not taken into account in the department's approval process. In commenting upon the expanded criteria to be considered in water right permit application decisions as the result of chapter 90.54 RCW, the court said, at page 117:

            "These contentions are no longer meritorious in light of the enactment of two significant and far-reaching statutes, the State Environmental Policy Act of 1971 (SEPA) (RCW 43.21C), and the Water Resources Act of 1971 (WRA) (RCW 90.54).  These two statutes apply to this case and the department is obligated, under them, to consider the total environmental and ecological factors to the fullest in deciding major matters.