RIGHT OF P.U.D. TO USE THE BEDS OF STREAMS WITHOUT COMPENSATION

RIGHT OF P.U.D. TO USE THE BEDS OF STREAMS WITHOUT COMPENSATION

A public utility district does not acquire any right to use, without compensation, state owned beds and shores of lakes, rivers and watercourses.

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                                                                 August 21, 1952

Honorable Cliff Yelle
State Auditor
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 383

Attention:  Mr. A. E. Hankins

Dear Sir:

            Receipt is acknowledged of your letter of August 13, 1952, in which you request our opinion as to whether a public utility district can occupy and use the bed and shores up to the high water mark of a river without payment of compensation to the state land commissioner who now holds it as state land.

            It is our conclusion that the public utility district statute, RCW 54.16.050, does not confer upon public utility districts the right to occupy the bed and shores of a river up to high water mark without payment of compensation to the state land commissioner where such bed and shores are held by the state.

                                                                     ANALYSIS

            RCW 54.16.050, which is a part of section 1 (e), chapter 143, Laws of 1945 (Rem. Rev. Stat. Supp. 11610 (e)), reads:

            "A district may take, condemn and purchase, purchase, and acquire any public and private property, franchises and property rights, including state, county, and school lands, and property and littoral and water rights, for any of the purposes aforesaid, and for railroads, tunnels, pipe lines, aqueducts, transmission lines, and all other facilities necessary or convenient, and, in connection with the construction, maintenance, or operation of any such utilities, may acquire by purchase or condemnation and purchase the right to divert, take, retain, and impound and use water from or in any lake or watercourse, public or private, navigable or nonnavigable, or held, owned, or used by the state, or any subdivision thereof, or by any person for any public or private use, or any underflowing water within the state; and the district may erect, within or without its limits, dams or other works across any river or watercourse, or across or at the outlet of any lake, up to and above high water mark; and, for the purpose of constructing  [[Orig. Op. Page 2]] or laying aqueducts or pipe lines, dams, or waterworks or other necessary structures in storing, retaining, and distributing water, or for any other purpose authorized hereunder, the district may occupy and use the beds and shores up to the high water mark of any such lake, river, or watercourse, and acquire by purchase or by condemnation and purchase, or otherwise, any water, water rights, easements, or privileges named herein or necessary for any of such purposes, and a district may acquire by purchase, or condemnation and purchase, or otherwise, any lands, property, or privileges necessary to protect the water supply of the district from pollution:  Provided, That should private property be necessary for any of its purposes, or for storing water above high water mark, the district may condemn and purchase, or purchase and acquire such private property."

            It will be noted that this section starts out by authorizing a district to acquire either public or private property; then it confers upon the district the right to, " * * * acquire by purchase or condemnation and purchase the right to divert, take, retain, and impound and use water from or in any lake or watercourse, public or private, navigable or non-navigable, or held, owned, or used by the state or any subdivision thereof, or by any person for any public or private use, etc.".  Here again, the power conferred upon the district deals indiscriminately with public and private rights.  The language of the statute in continuation of the portion just quoted, reads:

            "* * * the district may occupy and use the beds and shores up to the high water mark of any such lake, river, or watercourse, * * *"

            Such lake, river or watercourse deals with the language just previously quoted; that is, such lake, river or watercourse, either public or private.  The legislature has made no distinction in conferring this right to make use of the beds of lakes, rivers and watercourses as between those publicly and privately owned.  The language of the statute does not expressly confer the right to use publicly owned properties of this kind without compensation, and the fact that the statute could not confer the right to use privately owned properties of this kind without compensation negatives any inference that this statute, which deals with public and private watercourses indiscriminately, conferred any right to obtain publicly owned properties without compensation.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General