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AGO 1964 No. 117 - September 02, 1964
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- PUBLIC UTILITY ‑- WITHDRAWAL AND USE OF UNAPPROPRIATED SURFACE WATERS ‑- PERMIT FROM STATE SUPERVISOR OF WATER RESOURCES ‑- COMMENCEMENT AND COMPLETION OF CONSTRUCTION SCHEDULE.

(1) Before withdrawing and making use of unappropriated surface waters of the state of Washington for a public domestic water supply, a public utility district must obtain a permit from the state supervisor of water resources.

(2) A public utility district is subject to the commencement and completion of construction schedule set forth in RCW 90.03.320.

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                                                               September 2, 1964

Honorable James Munro
Prosecuting Attorney
Kitsap County
515 Sixth Street
Bremerton, Washington

                                                                                                              Cite as:  AGO 63-64 No. 117

Dear Sir:

            By letter previously acknowledged, you have requested advice of this office with regard to two questions which we have paraphrased as follows:

            1. Before withdrawing and making use of unappropriated surface waters of the state of Washington for a public domestic water supply, must a public utility district obtain a permit from the supervisor of water resources?

            2. If the answer to question 1 is in the affirmative, is a public utility district subject to the commencement and completion of construction schedule set forth in RCW 90.03.320?

            We answer both of your questions in the affirmative.

                                                                     ANALYSIS

            1. In 1917, the legislature of this state enacted what has become popularly known as the "Water Code."  Chapter 117, Laws of 1917 (now codified as chapter 90.03 RCW).  This legislation provides for a comprehensive program relating to the regulation and control of the use of waters within  [[Orig. Op. Page 2]] the boundaries of the state.  West Side Irrigation Co. v. Chase, 115 Wash. 146, 196 Pac. 666 (1921).

            Section 1 of the act (now codified as RCW 90.03.010), reads in pertinent part as follows:

            "The power of the state to regulate and control the waters within the state shall be exercised as hereinafter in this chapter provided.  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; and, as between appropriations, the first in time shall be the first in right.  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.  . . ." (Emphasis supplied.)

            RCW 90.03.250 reads in part:

            "Any person,municipal corporation. . . desiring to appropriate water for a beneficial use shall make an application to the supervisor of water resources for 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.)

            The import of these two sections is that the sole means or procedure for prospective water users, including municipal corporations, to acquire the right to make use of "public waters" of the state is found in RCW 90.03.250 and the sections following immediately thereafter.

            Your question relates to whether a public utility district, which is defined by RCW 54.04.020 as a "municipal corporation," must comply with the aforementioned provisions of the "water code."

             [[Orig. Op. Page 3]]

            The policy of the legislature as set forth in RCW 90.03.010, that the right to use unappropriated waters may be acquired only in accordance with the provisions of the "water code," when coupled with the specific mention in RCW 90.03.250 of a "municipal corporation" as a water user which must obtain a permit before diverting public waters, and the pronouncement of RCW 53.04.020 that a public utility district is a "municipal corporation," convinces this office that a public utility district must comply with the provisions of RCW 90.03.250.1/

             This conclusion is in no way altered by RCW 54.16.050, referred to in your request for advice, which provides, in part, that a public utility 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 andlittoral 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; . . ."  (Emphasis supplied.)

            So far as theacquisition of a usufructuary right to waters is concerned the quoted portion of RCW 54.16.050 applies,  [[Orig. Op. Page 4]] in our opinion, only to rights of use now held by a water user in waters in the state, and does not in any way refer to the initiation of a right to withdraw and useunappropriated waters of the state.

            You are therefore advised that before making use of any unappropriated surface waters for a domestic water supply, a public utility district must first obtain a permit to do so from the supervisor of water resources.

            2. Answering your first question as we have, you then request our opinion as to whether a public utility district, as an applicant for a water right permit pursuant to RCW 90.03.250, is also subject to RCW 90.03.320, which provides for the commencement and completion of the construction necessary to accomplish the diversion of waters applied for, according to a schedule established by the supervisor of water resources.

            As noted previously, the exclusive "manner" of acquiring a usufructuary right to the unappropriated waters of the state is found in RCW 90.03.250, and the sections following immediately thereafter.  These sections provide the steps leading to the issuance of a "permit," and ultimately to the issuance of a water right "certificate."  See, RCW 90.03.290 and RCW 90.03.330.  Nowhere therein are we able to locate any reason for exempting a public utility district from any of the requirements of these code sections, including RCW 90.03.320.

            It is our opinion, and you are therefore advised, that a public utility district is subject to the commencement and completion schedule set forth in RCW 90.03.320.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/For a similar conclusion with regard to the applicability of the "appropriation" procedure of the water code to cities and towns, see 28 OAG 876 (1928) [[1927-28 OAG 876 to, State Supervisor of Hydraulics on August 8, 1928]].

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