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AGO 1984 No. 19 - August 10, 1984
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

WATER ‑- WELLS ‑- EMINENT DOMAIN ‑- APPROPRIATION AND USE OF GROUND WATER UNDER 1945 GROUND WATER CODE AS AMENDED 

(1) Under the State Ground Water Code of 1945, as amended, the extent of protection for the holder of a ground water right established subsequent to the enactment thereof is dependent upon a site‑specific factual inquiry and technical analysis which takes into consideration both the geohydraulic characteristics of the aquifer and the state of pump and well construction technology.

(2) The protection afforded such a ground water right holder would not be affected by the pit or quarry operator having authorization from the State to drain water away from the pit or quarry.

(3) The protection thus afforded the ground water right holder by the Ground Water Code of 1945 would not be different if the right was established prior to the enactment thereof. 

(4) A wide variety of public and private entities may exercise the right to condemn water and water rights for a variety of uses; the right to condemn water under RCW 90.03.040 extends to "any person."

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

                                                                 August 10, 1984

Honorable Mike Todd
St. Rep., 31st District
17123 S.E. 339th
Auburn, Washington 98002

Cite as:  AGO 1984 No. 19                                                                                                                

 Dear Sir:

             By letter previously acknowledged you requested our opinion on several questions relating to ground water rights.  We paraphrase those questions as follows:

             (1) To what extent is the holder of a ground water right, established subsequent to the enactment of the Ground Water Code of 1945, protected against the activities of a subsequently established gravel pit or rock quarry operation which drains water away from the right holder's well, thereby leaving it dry?

              [[Orig. Op. Page 2]]

(2) Would the protection afforded the ground water right holder be affected by the pit or quarry operator having authorization from the State to drain water away from the pit or quarry?

             (3) Would the protection afforded the ground water right holder in any way depend upon whether water sufficient to satisfy the right could be obtained by drilling a deeper well?

             (4) Would the protection afforded the ground water right holder be different if the right was established prior to enactment of the Ground Water Code of 1945?

             (5) If the exercise of the power of eminent domain would be necessary to "permit an interference with well use," what types of entities are eligible to exercise that power?

             We answer questions (2) and (4) in the negative, question (3) in the affirmative, and questions (1) and (5) in the manner set forth in our analysis.

                                                                      ANALYSIS

             (a)Common Law Principles:

             Private rights to the use of subterranean waters were initially defined in this state by judicial decisions‑-with the leading cases being Patrick v. Smith, 75 Wash. 407, 134 Pac. 1076 (1913), andEvans v. Seattle, 182 Wash. 450, 47 P.2d 984 (1935).1/ Those cases adhered to the common law distinction between so-called underground streams and "percolating waters."  Underground streams were governed by the same rules as applied to surface streams and lakes.  Percolating waters, on the other hand, were subject to a concept which the Court, somewhat inappropriately, labeled  [[Orig. Op. Page 3]] "correlative rights."2/ All underground waters were presumed to be "percolating" and the burden of showing otherwise was made well-nigh impossible.3/

             From thePatrick and Evans cases the following ground water protection rules emerged:

             (1) A person who interferes with the reasonable use of percolating waters by a landowner is liable for damages unless the draining off of the water is necessary in connection with a "reasonable use" of the interferor's own property.4/

             (2) If, in connection with the reasonable use of his own property, a landowner interferes with the reasonable use of "percolating waters" by another owner, no damages are recoverable.

             Those principles do not, in fact, represent a "correlative rights" approach; rather, they involve a version of what is known as the doctrine of "reasonable use."5/ That doctrine does not  [d[Orig. Op. Page 4]] prevent a landowner from interfering with (or even destroying) a neighbor's water use so long as the landowner is making a reasonable use of his own property.  Indeed, in theEvans case, recovery was denied even though the City of Seattle (treated as an ordinary landowner), by draining water from a gravel pit which it owned, totally dried up springs relied on by the plaintiffs for their domestic supply.

             Similarly, inWilkening v. State, 54 Wn.2d 692, 344 P.2d 204 (1959) theEvans approach of treating the government like an ordinary landowner was used in finding no liability for backing ground water up on adjacent property.

             Subsequently, the Court created an exception to the reasonable use of land doctrine of theEvans case, applicable where damage was caused as a result of a public improvement project.  Thus, inState v. Ponten, 77 Wn.2d 463, 463 P.2d 150 (1969), liability was imposed on the State for draining nearby domestic wells in connection with an excavation for a freeway.  The Court concluded that because the State was pursuing rights obtained by eminent domain and was using property in a way no private owner would, it should not be considered an "ordinary landowner" making beneficial use of its property as under theEvans decision.  InBjorvatn v. Pacific Mechanical Construction, Inc., 77 Wn.2d 563, 464 P.2d 432 (1970), the Court reached a similar conclusion where "Seattle Metro" caused subsidence of adjacent property by draining water in connection with constructing a sewer.6/

             (b)The 1945 Ground Water Code:

             Notably, however, none of the foregoing cases took into account the impact of the 1945 Legislature's enactment of the State's Ground Water Code.7/ Indeed, it was not until 1979 that an  [[Orig. Op. Page 5]] appellate decision considered that law in reaching its conclusion.  See,Petersen v. Department of Ecology, 92 Wn.2d 306, 596 P.2d 285 (1979).  The delay in judicial recognition was apparently the result of confusion over whether the code was intended to apply to "percolating" waters.8/

             Any doubt as to statutory coverage, however, was laid to rest by the legislature when it amended the definition of "ground waters" in 1973.9/ This amended definition, as set forth in RCW 90.44.035, now reads, in pertinent part, as follows:

             "All waters that exist beneath the land surface or beneath the bed of any stream, lake or reservoir, or other body of surface water within the boundaries of this state,whatever may be the geological formation or structure in which such water stands or flows, percolates or otherwise moves, are defined for the purposes of this chapter as 'ground waters. . . .'"  (Emphasis supplied)

             Presently, then, if water is located underground it is unambiguously classified as ground water for purposes of the 1945 Ground Water Code.10/

             By its enactment of the Ground Water Code, the legislature adopted a new and substantially different approach to the protection of water rights‑-including, now, ground water rights.  Both the correlative rights and the reasonable use doctrines were rejected and, in their place, the doctrine of "prior appropriation" was made applicable to all water use.  That doctrine, long applied  [[Orig. Op. Page 6]] to the use of surface waters,11/ is based on a system of priority.  "First in time is first in right"‑-meaning that a prior appropriator is entitled to satisfy his entire right before a subsequent appropriator may take any water.12/

             Application of this doctrine to ground water also means that a right to the use of such water does not vary with circumstances; rather, it is fixed by definable attributes, including a specific point of withdrawal and a particular place of use.  Likewise, it is also subject to express limitations on the rate of withdrawal and the annual quantity which can be used.13/ All of these features are an outgrowth of the appropriation process through which rights are originated by physical actions.

             Moreover, under the "prior appropriation" doctrine, land ownershipper se does not necessarily include water rights.  Such rights must be created by actually withdrawing water and applying it to some beneficial use.  The amount that can be beneficially used for the purposes selected becomes the quantitative ceiling on the right.  Within this limit, the right is measured by the amount which, in fact, has been beneficially used.14/ Consequently, the  [[Orig. Op. Page 7]] process of appropriation is, generally, attended by a construction project.  The right itself is not perfected until the physical works for withdrawal and delivery of the waters are built and employed.15/

             With its express extension of the prior appropriation doctrine to ground water, the legislature also extended the notion of public ownership to such water.  RCW 90.44.040 thus states, in part:

             "Subject to existing rights, all natural ground waters of the state . . . are hereby declared to be public ground waters and to belong to the public and to be subject to appropriation for beneficial use under the terms of this chapter and not otherwise."

             Public ownership, in turn, points to public management and, accordingly, the Ground Water Code also makes the acquisition of rights dependent on compliance with a permit system.16/ By the permit process the State decides whether an appropriation project should be allowed.  If allowed, the project's development is monitored by the State and the right is acquired only on proof of actual appropriation.  Awater right certificate is then issued‑-the State's formal acknowledgment that the right has been perfected.17/

             None of the above‑noted Washington cases (decided without reference to the code) explicitly addressed the question of protection of works; that is, to what extent is a well owner protected in the level of water he originally finds in his well.  The code itself, however, does deal directly with that issue.  Specifically, the issuance of permits is limited by a concept of feasibility and reasonableness in light of the characteristics of the aquifer being tapped.  RCW 90.44.070 thus provides, in part:

             "No permit shall be granted for the development or withdrawal of public ground waters beyond the capacity of  [[Orig. Op. Page 8]] the underground bed or formation in the given basin, district, or locality to yield such water within a reasonable or feasible pumping lift in case of pumping developments, or within a reasonable or feasible reduction of pressure in the case of artesian developments. . . ."  (Emphasis supplied)

             Once a use for which a permit has been granted under this standard is pursued to project completion, the right acquired is protected against later appropriations by a principle of "safe sustaining yield."  See RCW 90.44.130, which reads in part:

             "As between appropriators of public ground water, the prior appropriator shall as against subsequent appropriators from the same ground water body be entitled to the preferred use of such ground water to the extent of his appropriation and beneficial use, and shall enjoy the right to have any withdrawals by a subsequent appropriator of ground water limited to an amount that will maintain and providea safe sustaining yield in the amount of the prior appropriation. . . ."  (Emphasis supplied)

             The Ground Water Code, read as a whole, is clearly a legislative attempt to declare substantive as well as procedural law.  As part of this milieu, RCW 90.44.070 and RCW 90.44.130, when construed together, define the content of ground water rights in relation to protection of works.

             (c)The Resulting Legal Principles:

             The picture which emerges is that the "safe sustaining yield" principle of RCW 90.44.130 is qualified by the "reasonable or feasible pump lift" concept of RCW 90.44.070.  The latter idea refers to the capacity of the ground water body.  Thus, if a new development prevents a prior appropriator from fully satisfying his appropriation from a well withdrawing water at or below the "reasonable or feasible pump lift" level for the aquifer in question, the prior appropriator's right has been interfered with.  Conversely, if the prior appropriator's well is very shallow and the new development does not prevent him from withdrawing from a deeper level which is still within the "reasonable or feasible pump lift" standard, no interference with his right has occurred.

             In the situation just described, the "safe sustaining yield in the amount of the prior appropriation" is still available within  [[Orig. Op. Page 9]] the aquifer, but not within the capacity of the prior appropriator's well as constructed.  His means of withdrawal are not protected until he reaches the "reasonable or feasible pump lift" well depth.  At that level and below, his ability to satisfy his appropriation at the well depth he has reached is part and parcel of his right.18/

             This interpretation, we note, harmonizes with the correlative objectives of the code;i.e., of promoting the full utilization of the public resource while protecting prior rights.  An interpretation which protected well depths absolutely, on the other hand, would limit ground water development to the level of the earliest and shallowest wells in an aquifer.  Conversely, an interpretation which offered no such protection would make ground water development a mere "race to the bottom," rendering the protection of prior appropriations illusory.19/

             Our conclusion that the code protects prior ground water withdrawals only at or below the level which represents a "reasonable or feasible pumping lift," however, also leaves the protection of works question to be answered on a case‑by-case basis.

             (d)Consideration of Questions Submitted:

             Our remaining task is to apply the foregoing analysis to your  [[Orig. Op. Page 10]] specific questions as above stated.

             Question (1):

             You first ask:

             To what extent is the holder of a ground water right, established subsequent to the enactment of the Ground Water Code of 1945, protected against the activities of a subsequently established gravel pit or rock quarry operation which drains water away from the right holder's well, leaving it dry?

            We believe that the answer to that question depends on a site‑specific factual inquiry and technical analysis which takes into consideration both the geohydraulic characteristics of the aquifer and the state of pump and well construction technology.  The existence of protection for the ground water right holder is dependent on whether he can satisfy his right after the draining operation by deepening his well to a point where the withdrawal is from a level no greater than the "reasonable or feasible pumping lift."  Of course, if his well was originally lifting water from this depth or below, his right is fully protected.

                         We reach this result notwithstanding the assumed fact that the interference is not caused by a rival well development but, instead, by a water draining operation.  Our conclusion is that the Ground Water Code was intended to be comprehensive, defining the substantive content of ground water rights, as well as describing their interrelationships.  In our view, the legislature did not intend that the protection of prior rights from wells would be limited solely to interference by other wells.20/

              [[Orig. Op. Page 11]]

            Where feasible, the form of protection would be to limit the interfering developer to an amount (or in a fashion) which would "maintain and provide a safe sustaining yield in the amount of the prior appropriation."  However, we recognize that such a regulatory solution may, in particular cases, not be feasible.21/

             In those situations where restoration of the "safe sustaining yield" in the prior appropriator's well cannot be achieved by regulation, we can give no definite answer regarding a physical solution of the problem.  Some jurisdictions have experimented with remedies requiring the culpable party to physically replace the water supply or bear the cost of replacing it.22/ Although neither the statutes nor the judge‑made law of damages in this state have expressly addressed this question, if the water loss is permanent or recurring, the courts are likely to regard the loss as a constitutional taking for which just compensation must be paid.23/ The measure of damages for such a taking would be the lesser of the diminution in value of the property to which the water is appurtenant or the cost to cure (i.e., replace the water supply.  SeePatrick v. Smith, 75 Wash. 407, 134 Pac. 1076 (1913); and Miotke v. Spokane, 101 Wn.2d 307, 334, ___ P.2d ___ (1984).

              [[Orig. Op. Page 12]]

            Question (2):

            You next inquire as follows:

             Would the protection afforded the ground water right holder be affected by the pit or quarry operator having authorization from the State to drain water away from the pit or quarry?

             We answer this question in the negative.

             Because the Ground Water Code was intended to deal with ground water usage comprehensively, the State has the authority to prohibit the activities of pit or quarry operators in draining waters.24/ Likewise, in the exercise of its discretion, it could authorize such activities.25/

             However, in thus allocating waters belonging to the public, the State is merely making tentative decisions bearing on the public interest and is in no sense purporting to adjudicate private rights or to guarantee that the uses it authorizes will result in no harm to such rights.26/ But, because it is operating within a priority system, all authorizations by the State are expressly made subject to existing rights (and would be so subject even if this were not expressly stated).27/ Therefore, if interference with a  [[Orig. Op. Page 13]] prior right occurs, the protection afforded the right holder would be unaffected by any subsequent state authorization of the use which caused the interference.  The State, in short, does not purport to authorize the impairment of existing rights.28/

             Question (3):

             Your third question asks:

             Would the protection afforded the ground water right in any way depend upon whether water sufficient to satisfy the right could be obtained by drilling a deeper well?

             This question is effectively answered in the affirmative by our response to question (1), above.

             Question (4):

             You next ask:

             Would the protection afforded the ground water right holder be different if the right was established prior to  [[Orig. Op. Page 14]] the Ground Water Code of 1945?

             We answer this question in the negative.

             As we have pointed out, the question of protection of works was not addressed in any of the common-law cases decided in this state.  The substantive rule of law on the issue is, accordingly, to be derived from the Ground Water Code.

             Although the code exempts "existing rights" from the appropriation procedure for acquiring rights, there is nothing to indicate that it was not intended todefine all ground water rights comprehensively.29/ In fact, as we shall next explain, the indications are to the contrary.

             RCW 90.44.090 provides for the issuance of water right certificates to those ". . . claiming a vested right to withdraw public ground waters of the state by virtue of prior beneficial use of such water . . ."  To obtain such a certificate, however, a claimant had to submit a declaration within three years30/ of 1945 stating the beneficial use made, the date of earliest beneficial use and continuity of use, the amount of water claimed, the land the water was applied to (if for irrigation) and a description of the well, other works, and the geologic formation.  In response to such declarations, the State was to make findings in the same manner as to an original application to appropriate and rule favorably if the findings "sustain the declaration."

            The inescapable conclusion to be derived from this aspect of the 1945 code is that the legislature meant to define "existing rights" as having the same essentialattributes as the rights which  [[Orig. Op. Page 15]] would be acquired under the code.  The law recognized and preserved existing rights then being exercised, but it defined them in a way which eliminated their initial character under the correlative rights or reasonable use doctrines.  In short, the legislature announced a rule of property defining all ground water rights in the State‑-old and new‑-and it provided at least three years for persons claiming existing rights to take steps to preserve them in accordance with the new definition of their attributes.  It therefore follows that the legal regime for protection of works discernible from the Ground Water Code applies to pre‑1945 as well as post-1945 ground water rights.31/

            This means that the case law as expressed in Patrick, Evans and Ponten has been rendered obsolete, and that the issues relating to interference with any ground water rights in this state are now governed by the code.32/

             Question (5):

             Finally, you ask:

             If the exercise of the power of eminent domain would be necessary to "permit an interference with well use," what types of entities are eligible to exercise that power?

             The Washington Constitution contains two provisions that bear upon the acquisition of water rights by eminent domain.  The first, Art. I., § 16 (Amendment 9), establishes the general requirements relating to the exercise of the power of eminent domain.  That section provides:

             "Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes.  No private property shall be taken or damaged for public or private use without just compensation having been first made, or  [[Orig. Op. Page 16]] paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law.  Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public:  PROVIDED, That the taking of private property by the state for land reclamation and settlement purposes is hereby declared to be for public use."

             The second section of the state constitution to be noted is Art. XXI, § which provides:

             "The use of the waters of this state for irrigation, mining and manufacturing purposes shall be deemed a public use."

             The power of eminent domain is an attribute of sovereignty.  It is an inherent power of the State, not derived from but limited by, the fundamental principles of the constitution.  A municipal corporation thus does not have the inherent power of eminent domain but, instead, it may exercise such power only when it is expressly so authorized by the legislature.  Tacoma v. Welcker, 65 Wn.2d 677, 683, 399 P.2d 330 (1965).

             The Washington Legislature has delegated the power of eminent domain to counties, cities, ports, public utilities, school districts for public uses, and to private parties for private ways of necessity.  The procedures to be followed by each of the entities possessing the power of eminent domain are set forth in six chapters of Title 8 RCW:  RCW 8.04 (state officers, boards and commissions); RCW 8.08 (counties, county commissioners and boards); RCW 8.12 (cities and towns); RCW 8.16 (school districts); RCW 8.20 (private corporations) and RCW 8.24 (private ways of necessity).

             In addition to those procedural statutes, many substantive grants of the power of eminent domain are contained throughout the Revised Code of Washington.  For example, the following code  [[Orig. Op. Page 17]] provisions allow condemnation of water or water rights:  RCW 8.12.030 and RCW 35.92.010 (cities); RCW 57.08.010 (water districts); RCW 8.28.050 (municipal corporations in another state); RCW 87.03.140-87.03.150 (irrigation districts) and 90.03.040 (any person).

             Litigation under Art. I, § 16 (Amendment 9), supra, has usually been focused on the authority of a public or quasi-public condemnor to acquire private property for public use.  In general the condemnor will be entitled to condemn the property or property rights it seeks to acquire if it can establish (1) that the proposed use is really a public use; (2) that the public interest requires the proposed improvement; and (3) that the property sought is necessary for the proposed use.

             The early cases interpreting Art. XXI, § I, supra, were concerned with the means of transporting water.  For example, the Court held that private irrigation companies may condemn private property for irrigation canal rights-of-way; see, Prescott Irrigation Co. v. Flathers, 20 Wash. 454, 55 Pac. 635 (1899); andState ex rel. Galbraith v. Superior Court, 59 Wash. 621, 110 Pac. 429 (1910); and for a storage reservoir site, see,State ex rel. Golden Valley Irrigation Co. v. Superior Court, 67 Wash. 556, 122 Pac. 19 (1912).

             Private individuals have also been allowed to condemn private lands for irrigation ditch purposes.  See,White v. Stout, 72 Wash. 62, 129 Pac. 917 (1913) (private condemnation instituted as a defense to a trespass charge);State ex rel. Lincoln v. Superior Court, 111 Wash. 615, 191 Pac. 805 (1920) (co-owner of private ditch instituted condemnation to enlarge ditch to convey additional water); State ex rel. Kirkendall v. Superior Court, 130 Wash. 661, 228 Pac. 695 (1924).  Likewise, condemnation by private individuals has been allowed for a water pipeline right of way,State ex rel. Gibson v. Superior Court, 147 Wash. 520, 266 Pac. 198 (1928) andState ex rel. Andersen v. Superior Court, 119 Wash. 406, 205 Pac. 1051 (1922) and for an irrigation pumping station location and pipeline right of way,State ex rel. Henry v. Superior Court, 155 Wash. 370, 284 Pac. 788 (1930).

             TheLincoln,Andersen, Kirkendall, Gibson, and Henry cases cited § 4 of the Water Code, Laws of 1917, chapter 117, page 447 and/or Rem. Comp. Stat., § 7354 (the initial version of RCW 90.03.040) as authority for the private right to condemn, together with Art. I, § 16 and Art. XXI, § 1 of the state constitution.

              [[Orig. Op. Page 18]]

            RCW 90.03.040 currently provides:

             "The beneficial use of water is hereby declared to be a public use, andany person may exercise the right of eminent domain to acquire any property or rights now or hereafter existing when found necessary for the storage of water for, or the application of water to, any beneficial use, including the right to enlarge existing strutures [structures] employed for the public purposes mentioned in this chapter and use the same in common with the former owner, and including the right and power to condemn an inferior use of water for a superior use.  In condemnation proceedings the court shall determine what use will be for the greatest public benefit, and that use shall be deemed a superior one:  PROVIDED, That no property right in water or the use of water shall be acquired hereunder by condemnation for irrigation purposes, which shall deprive any person of such quantity of water as may be reasonably necessary for the irrigation of his land then under irrigation to the full extent of the soil, by the most economical method of artificial irrigation applicable to such land according to the usual methods of artificial irrigation employed in the vicinity where such land is situated.  In any case, the court shall determine what is the most economical method of irrigation.  Such property or rights shall be acquired in the manner provided by law for the taking of private property for public use by private corporations."  (Emphasis supplied)

             Actual water allocation battles, based upon the "superior use" language of RCW 90.03.040, were fought inState ex rel. Andersen v. Superior Court, 119 Wash. 406, 205 Pac. 1051 (1922) (holding that the owner of a large farm could appropriate unused water from springs located on a small tract for household, stock and irrigation purposes because this use was superior to the potential irrigation of the small tract where the springs were located); and Mack v. Eldorado Water Dist., 56 Wn.2d 584, 354 P.2d 917 (1960) (court ordered removal of diversion dam constructed without prior authorization because the proposed condemnee's use of the water was determined by the court to be superior to the proposed condemnor's use).

             Early Washington cases which involved attempted appropriations of water for mining and manufacturing uses denied such appropriations if there was a chance that some of the electric  [[Orig. Op. Page 19]] power generated would be used for a "private" use.33/ The Tacoma Industrial case34/ held that:

             ". . . If it was intended by [Art. 21, Sec. 1] . . . to extend the right of eminent domain to private manufacturing corporations, or to authorize the taking of private property for a private use, it violates the due process clause of the Federal Constitution.  A state is powerless, by statute or by constitutional provision, to declare a use public which is essentially and inherently private. . . ."35/

             The court reversed its position in State ex rel. Chelan Electric Co. v. Superior Court, 142 Wash. 270, 253 Pac. 115 (1927), holding that the appropriation of water by a public service corporation to generate electric power to be sold to the public generally for manufacturing, domestic and professional purposes is a public use.  This decision specifically held that Art. XXI of the state constitution doesnot conflict with the federal constitution.

             The Court stated that:

             ". . . While the question of whether a use is public is one for the courts to determine, great weight should be given to the declaration of the constitution that the use of waters of the state for mining, irrigation and manufacturing are public uses. . . ."36/

             From the foregoing discussion it is apparent that a wide variety of public and private entities may exercise the right to condemn water and water rights for a variety of uses.  The right to condemn water under RCW 90.03.040 extends to "any person."  Litigation under RCW 90.03.040 has been sparse, but in at least two instances the court has decided allocation issues on the basis of the superior use of water.

              [[Orig. Op. Page 20]]

            This completes our consideration of your several questions.  We trust that the foregoing will be of assistance to you.

 Very truly yours,
 KENNETH O. EIKENBERRY
Attorney General 

P. WICKSTRAND DUFFORD
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/Common law legal development was expressly provided for in territorial law and carried over into the state statutes.  Judges were, among their other responsibilities, to shape legal rules so as to make them compatible with "the institutions and condition of society in this state."  See RCW 4.04.010.  This meant,interalia, adaptation of English water law rules to the circumstances of the arid American West.  See Proctor v. Sim, 134 Wash. 606, 616, 236 Pac. 114 (1925).

 2/SeePatrick v. Smith, 75 Wash. 414, 415; Evans v. Seattle, 182 Wash. at 457-459.

 3/SeeEvans v. Seattle, 182 Wash. at 452-457; and see also,Meyer v. Tacoma Light & Water Co., 8 Wash. 144, 35 Pac. 601 (1894).  No appellate case in Washington confirms the existence of an underground stream.  The reluctance to find that ground waters are part of an underground stream would seem to reflect judicial accommodation to hydrologic reality.  The underground stream concept has been criticized as "an attempt to restate the physical universe."  Corker, Ground Water Law, Management and Administration, National Water Commission Legal Study No. 6, 147 (1971).

 4/Under this rule, the withdrawal of "percolating waters" by a landowner for commercial purposes to the exclusion of another's use would appear to involve an unreasonable use of the taker's property.  Evans v. Seattle, 182 Wash. at 459.

 5/"Correlative rights" implies shared interests in a common res‑-and, where truly adopted, limits each user to his fair share.  See Restatement (Second) of Torts, § 858.  The doctrine of "reasonable use," on the other hand, allows an owner to take all the water he needs, regardless of impact on his neighbor, if the owner's withdrawal is required for a reasonable use of his land.  See,e.g.,State v. Michels Pipeline Construction, Inc., 63 Wis.2d 278, 217 N.W.2d 339 (1974).

 6/Bjorvatn makes it clear that Ponten is based on a theory of unconstitutional damaging.  See, however,Wilkening v. State, 54 Wn.2d 692, 344 P.2d 204 (1959) in which theEvans approach of treating the government like an ordinary landowner was used in finding no liability for backing ground water up on adjacent property.

 7/Chapter 90.44 RCW, enacted as chapter 263, Laws of 1945.

 8/In Ponten, supra, Justice Neill, in dissent, stated that he believed the Ground Water Code should govern because factually he saw the situation as involving "ground waters" as statutorily defined.  However, he also thought that "percolating waters" were not within that definition.  77 Wn.2d at 477, 478.  The majority did not mention the code.

 9/Section 2, chapter 94, Laws of 1973.

 10/Interestingly, § 1, chapter 94, Laws of 1973 stated that the purpose of the amended definition was to ". . . reaffirm the intent of the legislature that 'ground waters,' . . . means all waters within the state existing beneath the land surface, and to remove any possible ambiguity which may exist as a result of the dissenting opinion in State v. Ponten, . . ."

 11/The doctrine of prior appropriation for surface streams and lakes on the public domain has been recognized since statehood.  Thorpe v. Tenem Ditch Co., 1 Wash. 566, 20 Pac 588 (1889).  The doctrine of riparian rights was recognized at the same time.  Benton v. Johncox, 17 Wash. 277, 49 Pac. 495 (1897).  In 1917 the legislature enacted a comprehensive water code for the state which, thereafter, made appropriation the sole means for acquiring surface water rights.  Chapter 117, Laws of 1917, now codified primarily in chapter 90.03 RCW.  The Ground Water Code of 1945 took the same approach, stating as follows:

 "This chapter regulating and controlling ground waters of the state of Washington shall be supplemental to chapter 90.03 RCW, which regulates the surface waters of the state, and is enacted for the purpose of extending the application of such surface water statutes to the appropriation and beneficial use of ground waters within the state."  RCW 90.44.020.

 12/See, e.g., RCW 90.44.130.

 13/See, e.g., RCW 90.44.060, 90.03.260, 90.03.380, and 90.44.100.

 14/See, e.g., RCW 90.03.290, 90.03.330, 90.03.400, and 90.44.120.

 15/RCW 90.03.320-90.03.330; RCW 90.44.080.

 16/RCW 90.44.050.  Enumerated uses of relatively minor amounts are exempted from the permit requirement.

 17/RCW 90.44.080.

 18/This approach is an adaptation of the generally accepted rule applied to prior appropriation rights to surface water.  The rule affords protection only for reasonable means of diversion.  See Warner Valley Stock Co. v. Lynch, 215 Or. 523, 336 P.2d 884 (1959); State ex rel. Crowley v. District Court, 108 Mont. 89, 88 P.2d 23 (1939).  Analogous procedures have been adopted to protect ground water development in other appropriation doctrine states.  SeeFundingsland v. Colorado Ground Water Commission, 171 Colo. 487, 468 P.2d 835 (1970);Baker v. Ore‑Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973).  Though no appellate cases interpret this State's Ground Water Code on protection of works, the position expressed in this opinion has been litigated and upheld in determinations of the Pollution Control Hearings Board.  E.g.,Shinn v. Department of Ecology, PCHB Nos. 613, 648-652 (January 29, 1975).

 19/SeeMathers v. Texaco, Inc., 77 N.M. 239, 421 P.2d 771 (1966).

 20/Justice Neill, dissenting in State v. Ponten, 77 Wn.2d 463, 463 P.2d 150 (1969), was of the same view.  In that case he would have applied the Ground Water Code to resolve a problem analogous to that posed by the instant opinion request‑-the draining of adjacent wells in connection with excavation for a highway.  He explicitly rejected the trial court's notion that the code applies only to cases involving the conflicting use of water.  (It was apparently assumed that the highway excavation did not involve a water use, as such.)  ". . .To the contrary," he said, "an intent to protect beneficial use of water from all subsequent deprivation is indicated by the fact that the statute safeguards against willful or negligent waste of ground water (RCW 90.44.120). . . ."  77 Wn.2d at 477.

 The legislature's subsequent redefinition of ground water to explicitly include "percolating" as well as other waters below land surface appears to be a ratification of Justice Neill's view of the code's effect on matters within its coverage.  See, RCW 90.44.035 and § 1, chapter 94, Laws of 1973,supra.

 21/In some cases, the effect of a drainage project may be irreversible, or it may cause damage which cannot be rectified by regulating the interferor's project.  Traditional tort or inverse condemnation remedies should be available in such situations.  SeeBjorvatn v. Pacific Mechanical Construction, Inc., 77 Wn.2d 563, 464 P.2d 432 (1970).

 22/E.g., Current Creek Irrig. Co. v. Andrews, 9 Utah 2d 324, 344 P.2d 528 (1959);Pima Farms Co. v. Proctor, 30 Ariz. 96, 245 Pac. 369 (1926).

 23/Northern Pac. v. Sunnyside Irrig., 85 Wn.2d 920, 540 P.2d 1387 (1975).  See, question (5),infra, for our conclusions regarding the individuals and entities having the power of eminent domain.

 24/See discussion in footnote 20, above.

 25/The State's "ownership" of waters is, at the least, an acknowledgment of police power to regulate their allocation and use comprehensively.  SeeSporhase, et al v. Nebraska, ex rel. Douglas, 458 U.S. 941, 73 L.Ed.2d 1254, 102 S.Ct. 3456 (1982).  InPetersen v. Department of Ecology, 92 Wn.2d 306 596 P.2d 285 (1979), the Court rejected an argument that the refusal of the State to issue a ground water permit was a "taking," concluding that the permit requirement is a reasonable exercise of the State's police power.  If, then, the state has the power to say "no" to water uses, it has the power to say "yes" to such uses under conditions it finds appropriate to impose.  See,State v. Crown Zellerbach Corp., 92 Wn.2d 894, 602 P.2d 1172 (1979).

 26/SeeFunk v. Bartholet, 157 Wash. 584, 289 P.2d 1018 (1930);Mack v. Eldorado Water District, 56 Wn.2d 584, 354 P.2d 917 (1960).

 27/We express no opinion here as to whether the draining of water for a gravel pit or quarry is a "beneficial use" of water as that term is now defined by statute.  See RCW 90.54.020(1).  Nor do we opine on whether such a use is an "appropriation" as contemplated by the code, requiring compliance with the statutory permit system.

 The Department of Ecology, which now administers the water resource management program of the State, has, in another context, established by regulation a separate permitting process for use of "artificially stored" waters which are not covered by the statutory permit system.  Chapters 173-134 and 173-136 WAC.  Jensen v. Ecology, 102 Wn.2d 109, ___ P.2d ___ (1984).  However, the department has no rules which are explicitly addressed to drainage projects.

 28/Authorization of the draining project, while not affecting the physical protection afforded, might well have an impact on the remedies against the interferor.  The "unauthorized" use of ground water to which another is entitled is a crime.  RCW 90.44.120.  State authorization, therefore, would probably limit injured parties to civil recourse.

 29/RCW 90.44.040, quoted on page 7, supra, does not elaborate on the term "existing rights."  Compare RCW 90.03.010 (from the earlier surface water statutes) which goes to considerably greater length, stating in part:

 ". . . Nothing contained in this chapter shall be construed to lessen, enlarge, or modify the existing rights of any riparian owner, or any existing right acquired by appropriation, or otherwise. . . ."

 30/An extension of time not to exceed two more years was available on petition to the (then) state supervisor of hydraulics.

 31/Justice Neill, dissenting in Ponten, made no distinction concerning the code's application as between pre‑code and post-code rights.  See discussion in footnote 20 above.

 32/The enactment of chapter 94, Laws of 1973, explicitly reaffirming the code's comprehensive coverage, underscores this point.

 33/See State ex rel. Tacoma Industrial Co. v. White River Power Co., 39 Wash. 648, 82 Pac. 150 (1905).

 34/Id.

 35/39 Wash. 648 at page 669.

 36/142 Wash. 270, at 279-280.

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