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AGO 1975 No. 10 - May 15, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- THERMAL POWER PLANT SITE EVALUATION COUNCIL ‑- DEPARTMENT OF NATURAL RESOURCES ‑- GOVERNOR ‑- CERTIFICATION OF THERMAL POWER PLANT SITES

A certification, approved by the governor under chapter 80.50 RCW, may authorize the withdrawal of such public waters as are required for use in the operation of a thermal power plant.

                                                              - - - - - - - - - - - - -

                                                                   May 15, 1975

Honorable Joseph F. Lightfoot
Executive Secretary
Thermal Power Plant Site Evaluation Council
820 East Fifth Avenue
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1975 No. 10

Dear Sir:

            By letter previously acknowledged you have asked for our opinion on a question which we paraphrase as follows:

            May a certification, approved by the governor under chapter 80.50 RCW, authorize the withdrawal of such public waters as are required for use in the operation of a thermal power plant?

            We answer this question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Chapter 80.50 RCW codifies the provisions of chapter 45, Laws of 1970, Ex. Sess., commonly known as the thermal power plant siting act, together with certain later amendments and additions thereto.  In essence, this law provides for the certification of thermal power plant sites in this state by the governor after receiving the recommendations of an agency known as the thermal power plant site evaluation council (TPPSEC).  RCW 80.50.070 ‑ 80.50.100.  "Certification" is defined by RCW 80.50.020(6) to mean:

             [[Orig. Op. Page 2]]

            ". . . a binding agreement between an applicant and the state which shall embody compliance to the siting guidelines adopted in RCW 80.50.050 as conditions to be met prior to or concurrent with the construction or operation of any thermal power plant coming under this chapter."

            The effect of such certification is spelled out in RCW 80.50.120 as follows:

            "(1) Subject to the conditions set forth therein any certification signed by the governor shall bind the state or any of its departments, agencies, divisions, bureaus, commissions or boards as to the approval of the site and the construction and operation of the proposed thermal power plant and any associated transmission lines.

            "(2) The certification shall authorize the electric utility named therein to construct and operate the proposed thermal power plant and any associated transmission lines subject only to the conditions set forth in such certification.

            "(3) The issuance of a certification shall be in lieu of any permit, certificate or similar document required by any department, agency, division, bureau, commission or board of this state."

            The basic issue here raised is whether this statute applies to and encompasses such water use permits and certificates as are otherwise issued by the state department of ecology pursuant to chapters 90.03 and 90.44 RCW.  The first of these two chapters contains what is commonly referred to as the 1917 water code1/ and regulates the use of public surface waters while the second codifies a more recent enactment2/ regulating the use of public ground  [[Orig. Op. Page 3]] waters.  Without the permits which are currently issued by the department of ecology thereunder the withdrawal and use of public surface waters or ground waters is generally illegal.  Thus, obviously, an affirmative answer to your question would mean the existence of a conflict between the applicable provisions of the two water codes, on the one hand, and the thermal power plant siting act on the other.  However, because of another section of the latter act, RCW 80.50.110, such a conflict would not preclude us from reaching that result.  RCW 80.50.110 provides, expressly, that:

            "(1) If any provision of this chapter is in conflict with any other provision, limitation, or restriction which is now in effect under any other law of this state, or any rule or regulation promulgated thereunder, this chapter shall govern and control and such other law or rule or regulation promulgated thereunder shall be deemed superseded for the purposes of this chapter."

            In our opinion an affirmative answer to your question is called for by the provisions of RCW 80.50.120,supra, because:

            (1) Insofar as the construction and operation of a thermal power plant is concerned, the governor's certification is binding on all other state agencies and is ". . . in lieu of any permit, certificate or similar document required by . . ." any such agencies;

            (2) To the extent that an ability to use public surface or ground waters is physically required in order to operate such a power plant (a fact easily demonstrated as we understand it), a water use permit issued by the department of ecology under chapter 90.03 or chapter 90.44 RCW would be such a permit as is thus referred to;

            (3) Therefore, because of RCW 80.50.120, the authority which is granted by such a permit, in the case of such a power plant, may instead be granted by the certification, as approved by the governor, which is referred to in the thermal power plant siting act.

             [[Orig. Op. Page 4]]

            In so concluding we acknowledge that a water right is commonly understood to be a form of property.  See, e.g.,Madison v. McNeal, 171 Wash. 669, 19 P.2d 97 (1933).  This, however, appears to us to be irrelevant.  The point is that whatever label is attached to the "thing" that is granted by a water use permit, it is, under the surface and ground water codes, a thing which is granted by a state agency through the issuance of a permit.  For that reason, as distinguished from such property interests as are, instead, granted by the execution and delivery of a deed or lease agreement or the like, this right from the state may be obtained, in the case of a thermal power plant, from the governor under chapter 80.50 RCW.

            At least, that is how we would read chapter 80.50 RCW as it now stands.  If the legislature is of a different mind it may, quite properly, amend the provisions of that chapter at any time.  Until and unless it does, however, our answer to your question, as set forth at the outset of this opinion, must be in the affirmative.

            We trust that the foregoing will be of assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General


DARREL L. PEEPLES
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Chapter 117, Laws of 1917, as amended.

2/Chapter 243, Laws of 1945, as amended.

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