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AGO 1992 No. 17 - July 28, 1992
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

GROWTH MANAGEMENT ACT--DEPARTMENT OF HEALTH--BOARD OF HEALTH--BUILDINGS--COUNTIES--STATE BUILDING CODE--WATER--Requirement of Adequate Water Supply Before a Building Permit is Issued

1.  RCW 19.27.097 provides that an applicant for a building permit must provide evidence of an adequate supply of potable water.  The authority to make this determination is the local agency that issues building permits.

2.   The Legislature has authorized the Board of Health to establish, and the Department of Health to enforce, a comprehensive regulatory scheme for public water systems. In determining whether water to be supplied from a public water system constitutes an adequate water supply for purposes of RCW 19.27.097, the local agency issuing building permits must apply the standards set by the Board of Health.

3.  If water is not supplied from a public water system, the local agency issuing building permits has more discretion to determine if the water supply is adequate for purposes of RCW 19.27.097.  At a minimum, there must be sufficient quality and quantity of water for the intended purpose of the building.

                                                                    * * * * * * * * * *

                                                                    July 28, 1992

HonorableBob Morton
State Representative, District 7
325 John L. O'Brien Building
Post Office Box 40614
Olympia, Washington  98504

                                                                                                                 Cite as:  AGO 1992 No. 17

Dear Representative Morton:

            By letter previously acknowledged, you requested our opinion on two questions regarding the requirement of the state's Growth Management Act (GMA) that applicants for residential building permits demonstrate the existence of an adequate supply of water for the building to be constructed.  We have paraphrased your questions as follows:

            1.         Which governmental agency has authority under RCW 19.27.097 to determine whether an applicant for a building permit has shown that there is an adequate water supply for the building to be constructed?

            2.         To what extent is the agency bound by existing law regarding the availability and use of water when it makes this determination?

            We answer your questions as explained in the following analysis.

                                                                BACKGROUND

            To answer your questions, we must consider provisions of a number of state statutes and regulations that govern the availability and use of water.  We begin by discussing relevant portions of the GMA, the laws related to public water systems, and RCW 90.03 and 90.44, which address the appropriation of surface and ground waters in this state.

            In 1990, the Legislature passed the Growth Management Act (Laws of 1990, 1st Ex. Sess., ch. 17), which has been codified primarily in RCW 36.70A.  Substantial amendments were made by the 1991 Legislature.  See Laws of 1991, 1st Sp. Sess., ch. 32.  The legislative intent of the GMA is to coordinate and plan growth so as to balance environmental, economic development, health, safety, and quality concerns in the use of the lands within the state.  RCW 36.70A.010.

            The specific provision of the GMA that you have inquired about has been codified in RCW 19.27, the State Building Code Act.  It provides as follows:

                        (1)  Each applicant for a building permit of a building necessitating potable water shall provide evidence of an adequate water supply for the intended use of the building.  Evidence may be in the form of a water right permit from the department of ecology,a letter from an approved water purveyor stating the ability to provide water, or another form sufficient to verify the existence of an adequate water supply.  In addition to other authorities, the county or city may impose conditions on building permits requiring connection to an existing public water system where the existing system is willing and able to provide safe and reliable potable water to the applicant with reasonable economy and efficiency.  An application for a water right shall not be sufficient proof of an adequate water supply.

                        (2) Within counties not required or not choosing to plan pursuant to RCW 36.70A.040,[1]  the county and the state may mutually determine those areas in the county in which the requirements of subsection (1) of this section shall not apply.  The departments of health and ecology shall coordinate on the implementation of this section.  Should the county and the state fail to mutually determine those areas to be designated pursuant to this subsection, the county may petition the department of community development to mediate or, if necessary, make the determination.

                        (3)  Buildings that do not need potable water facilities are exempt from the provisions of this section.  The department of ecology, after consultation with local governments, may adopt rules to implement this section, which may recognize differences between high-growth and low-growth counties.

RCW 19.27.097 (emphasis added).

            Both the Board of Health and the Department of Health have authority to regulate "public water systems".   A "public water system" is

            any system, excluding a system serving only one single-family residence and a system with four or fewer connections all of which serve residences on the same farm,providing piped water for human consumption, including any collection, treatment, storage, or distribution facilities under control of the purveyor and used primarily in connection with the system; and collection or pretreatment storage facilities not under control of the purveyor but primarily used in connection with the system.

RCW 70.119A.020(4) (emphasis added).  See also RCW 70.119.020(9). Pursuant to its authority, which includes the power to adopt rules "necessary to assure safe and reliable public drinking water", and to set standards for allowable concentrations of contaminants in drinking water, the Board of Health has adopted standards for public water systems in chapter 246-290 WAC.  RCW 43.20.050(2)(a), 70.142.010.  Under these rules, no new sources of water may be used by a public water system without first being approved by the Department of Health.  WAC 246-290-130.  Both existing and proposed public water systems must meet water quality standards established by the Board of Health.  WAC 246-290-250(1).  Public water systems also are required to provide an adequate quantity of water for the systems' consumers.[2]  WAC 246-290-420(1).

            Requirements relating to public water systems may be enforced by the state Department of Health and, in some cases, by  local health jurisdictions.  The Department of Health may require compliance with any applicable water quality requirements "as promptly as necessary to abate an immediate public health threat".  RCW 70.142.050.  Either the Department of Health or an authorized local board of health may issue an order requiring a person to cease violating any regulation relating to public water systems.  RCW 70.119A.030.  The Department of Health may enforce regulations it has adopted relating to certification of public water system operators.  RCW 70.119.050.  Finally, the Department of Health has authority to bring an action to enjoin a violation or threatened violation of any rules regarding public water systems that have been adopted either by it or by the Board of Health.  RCW 43.70.190.

            Laws governing the right to appropriate surface waters and ground waters are found in RCW 90.03 and 90.44, respectively.  Both give the Department of Ecology power to issue permits authorizing persons to take waters for beneficial uses, provided that water is available, that the appropriation will not be detrimental to the public welfare, and that it will not impair existing rights.  RCW 90.03.290, 90.44.060.  Permit requirements for surface waters are set forth in RCW 90.03.250, which provides in part as follows:

            Any person, municipal corporation, firm, irrigation district, association, corporation or water users' association hereafter desiring to appropriate water for a beneficial use shall make an application to the department [of ecology] for a permit to make such appropriation, and shall not use or divert such waters until he has received a permit from the department as in this chapter provided.

(Emphasis added.)  Permit requirements for ground waters are set forth in RCW 90.44.050, which provides in part as follows:

            After June 6, 1945,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 department [of ecology] and a permit has been granted by it as herein providedExcept, however, That any withdrawal of public ground waters for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day or for an industrial purpose in an amount not exceeding five thousand gallons a day, is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions of this chapter[.]

(Emphasis added.)

            With this background in mind, we turn to your questions.

                                                                    ANALYSIS

            Question 1:

            Which governmental agency has authority under RCW 19.27.097 to determine whether an applicant for a building permit has shown that there is an adequate water supply for the building to be constructed?

            In our opinion, the agency with authority to make this determination is the local agency that issues the building permit.  In many cities and counties, this will be the local building department.[3]

            Although the GMA does not explicitly state that the local building department will make the determination, we believe that the Legislature intended this result.  It chose to make the demonstration of an adequate water supply part of the building permit application process.  RCW 19.27.097(1).  Building permits are, of course, issued by local building departments.   The Legislature did not assign responsibility for making the determination of an adequate water supply to any other governmental entity.  Therefore, the logical inference to be drawn is that the Legislature meant for the department that reviewed applications and decided whether a permit should be issued also to review the evidence provided regarding water supply, and to determine whether the supply is adequate for the intended use of the building.[4]

            Question 2:

            To what extent is the agency bound by existing law regarding the availability and use of water when it makes this determination?

            We cannot answer Question 2 without first analyzing what is meant by an "adequate" water supply.  The word is not defined in RCW 19.27 or in the GMA.  Its meaning, therefore, must be gleaned from the subject matter of the GMA, from the purpose of the act, and from the context in which the word is used.  See, e.g.,Public Util. Dist. No. 1 v. Washington Pub. Power Supply Sys., 104 Wn.2d 353, 369, 705 P.2d 1195 (1985).  In our opinion, an "adequate" water supply is one that is of sufficient quality and sufficient quantity to satisfy the demand created by the new building.

            The requirement that there be an adequate water supply is triggered only if the building for which a permit is sought needs "potable" water.  RCW 19.27.097(1), (3).  Potability, therefore, is one element of adequacy.  Although "potable" is not defined in the GMA, its meaning is commonly understood and thus may be taken from a dictionary.  See, e.g.,Garrison v. Washington State Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1976).  Water is potable if it is suitable for drinking.  Webster's Third New International Dictionary 2581 (1961); see also WAC 246-290-010(18) (definition of "potable" for purposes of the Board of Health's public water supplies regulations).  Obviously, not all water, such as that contaminated by salt or hazardous chemicals, is suitable for drinking.  Only water that may safely be drunk can be considered "adequate".

            The other element of adequacy is quantity.  A water supply cannot be adequate "for the intended use of the building", as required by RCW 19.27.097, unless its amount is sufficient to serve the expected needs of the building's occupants.  This interpretation is consistent with the legislative goals of the GMA.  Read together, the goals indicate support for construction of new buildings that can be sustained with available resources, including water.  See RCW 36.70A.010, .020.  By implication, the goals also discourage construction that cannot be supported by available resources.

            In determining whether a water supply is adequate, therefore, a local building department must consider both the quantity and the quality of the water.  RCW 19.27.097(3) authorizes the Department of Ecology to adopt rules to implement the provisions of that section.  If the Department of Ecology exercises this authority, then local building departments will make their determinations in accordance with the standards set in those rules.

            Until the Department of Ecology adopts rules, however, the local building department will be guided by existing laws regarding public water systems and appropriation of waters of the state.  The answer to Question 2 depends on the source of the water.  Because the laws governing public water systems are so extensive, local building departments will have very little discretion to decide what criteria apublic water system must meet to be deemed adequate; this determination will be made by application of existing statutes and regulations to the public water system in question.  Forother water sources -- that is, any source that does not qualify as a public water system -- the local building department will have significantly more discretion.  This discretion must be exercised with reference to state water appropriation law.  We will discuss the laws applicable to public water systems and other water sources in turn.

            The Legislature has authorized the Board of Health to establish, and the state Department of Health to enforce, a comprehensive regulatory scheme for public water systems.  Under this scheme, public water systems must comply with the standards set forth in chapter 246-290 WAC.  See RCW 43.20.050(2), 70.119A.060, 70.142.050; WAC 246-290-050.  These requirements are enforceable in various ways, including, for example, by subjecting violators to criminal prosecution, by imposing fines, and by denying approvals necessary to construct new public water systems.  See, e.g., RCW 70.119.030, 70.119A.040, 70.142.050; WAC 246-290-050, -130.

            It is clear from this regulatory scheme that public water systems must operate in accordance with the Board of Health's standards.  It is equally clear, therefore, that in determining whether water to be supplied from a public water system constitutes an "adequate water supply" for purposes of RCW 19.27.097, the local building department must apply the standards set by the Board of Health.  The result, if it did not do so, would be absurd.  If the local building department issued  building permits based on a lower standard of adequacy than that set forth in the Board of Health rules, it could find that the Department of Health later denied the approvals necessary for the public water system to operate.  Obviously, this would leave the building without an adequate water supply.  Legislation should be interpreted so as to avoid unlikely, absurd, or strained consequences like this.  E.g.,State v. Stannard, 109 Wn.2d 29, 36, 742 P.2d 1244 (1987).

            Not only is it sensible to conclude that Board of Health standards must be used to determine whether a public water system provides an adequate water supply, but it also is dictated by the requirement that statutes relating to the same subject matter be read "together as constituting a unified whole, to the end that a harmonious, total statutory scheme evolves which maintains the integrity of the respective statutes."  State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974).  RCW 19.27.097 concerns the availability and use of water, a subject that the Legislature has addressed in other statutes, including chapters 43.20, 70.119, 70.119A, 70.142, 90.03, and 90.44 RCW.  These statutes should be harmonized.  We think it likely that the Legislature intended for local building departments determining the adequacy of water supplies pursuant to RCW 19.27.097 to do so with reference to the statutes and rules relating to water quality and water quantity also enacted or authorized by the Legislature.

            One of these laws allows any local health department serving a county with a population of 125,000 or more to establish water quality standards for its jurisdiction that are more stringent than the standards established by the Board of Health.  RCW 70.142.040.  In areas where a local health department has exercised this authority, public water systems will be required to comply with the more stringent local standards.  See RCW 70.05.060, .070.  As a result, a public water system located in a jurisdiction with more stringent local standards must meet those standards to be considered adequate for purposes of RCW 19.27.097.

            While water quality and water quantity standards exist for public water systems, none exist for other water sources -- those that do not fit the definition of a public water system.  Consequently, local building departments will be able to exercise greater discretion when determining whether other water sources provide water of sufficient quality and quantity.  We believe that local building departments could, if they choose, apply the quality and quantity standards for public water systems to other water sources.  In jurisdictions where the local health department has established water quality standards that are more stringent than those established by the Board of Health, we believe that the local building department also could apply those more stringent standards to other water sources.

            If a local building department chooses not to apply public water system standards to other water sources, then it may apply any other criteria that it determines are appropriate to ensure that the water supply for a building is of sufficient quality and quantity for the intended use of the building.  These criteria must be based on considerations of water quality and quantity, and not on other considerations, such as limiting density or the construction of unpopular facilities.  Furthermore, the local building department may not act in an arbitrary and capricious manner in setting the criteria.  E.g.,Rosen v. Tacoma, 24 Wn. App. 735, 740, 603 P.2d 846 (1979).  This means that its actions must not be willful and unreasoning, taken "without consideration and in disregard of facts and circumstances."  E.g.,Pierce Cy. Sheriff v. Civil Serv. Comm'n, 98 Wn.2d 690, 695, 658 P.2d 648 (1983).

            At a minimum, the criteria adopted by the local health department must require that the water supply be potable, and must recognize the effect of the water rights statutes, chapters 90.03 and 90.44 RCW.  With one exception that is relevant to your question, these statutes prohibit the appropriation of surface and ground waters in this state without a permit issued by the Department of Ecology.  RCW 90.03.250 (surface waters), 90.44.050 (ground waters).

            The pertinent exception to the permitting requirements is found in RCW 90.44.050, which allows the withdrawal of up to 5,000 gallons a day of ground water for specified purposes without a permit.  If ground water is regularly used beneficially as provided in that statute, then the appropriator will be entitled to a "right equal to that established by a permit issued under the provisions" of chapter 90.44 RCW.  Id.  Consequently, any applicant for a building permit who claims that the building's water will come from surface or ground waters of the state, other than from a public water system, must prove that he has a right to take such water.[5]  The applicant cannot establish that he has an adequate water supply if a permit is required and he has done no more than apply to the Department of Ecology for that permit.  RCW 19.27.097(1).

            It should be noted that a water right is proof only of the quantity of water available.  In granting a water permit, the Department of Ecology makes no determination that the water is potable, or that it will meet any of the standards set by the Board of Health.  Therefore, an applicant offering a water right as evidence of an adequate water supply will have proven only half his case; he also must show that his water meets any water quality criteria established by the local building department.

            Although we suspect that most water to be supplied for new buildings will come from public water systems or will be appropriated from ground or surface waters, it also is possible that an applicant for a building permit may try to show that some other source, such as bottled water, will provide an adequate water supply.  We do not believe that RCW 19.27.097 can be read to say that such other sources necessarily will be inadequate.   However, we believe that to fulfill its obligation under RCW 19.27.097, a local building department must satisfy itself that the other source is reliable, in addition to being of sufficient quality and quantity.  This means that there should be some demonstration that water actually will be made available to the building for a reasonable period of time.

            We trust this opinion will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    THOMAS McDONALD
                                    Assistant Attorney General

                                    TANYA BARNETT
                                    Assistant Attorney General

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    [1]Among other things, the GMA requires that certain local governments prepare comprehensive land use plans.  Plans must be prepared by each county that has both a population of 50,000 or more and has had its population increase by more than 10 percent in the previous 10 years, and by any county that has had its population increase by more than 20 percent in the previous 10 years, regardless of the number of its inhabitants.  RCW 36.70A.040(1).  The GMA contains both "opt-out" and "opt-in" provisions.  The "opt-out" provision allows a county with a population of less than 50,000 to remove itself from the requirements of chapter 36.70A RCW.  The "opt-in" provision allows a county that is not required to adopt a plan under the requirements of RCW 36.70A.040 to subject itself to the requirements of that subsection.  RCW 36.70A.040(2).

    [2]In addition to the quantity and quality requirements that apply to all public water systems, some public water systems will, in the future, have to be permitted.  The Department of Health has been given authority to adopt rules implementing RCW 70.119A.010, which requires an operating permit for any "group A public water system" -- that is, any public water system with 15 or more service connections or that serves an average of 25 or more people per day for 60 or more days within a calendar year.  Furthermore, current law requires that the operator of a public water system be certified by the Department of Health if the system is a "group A" system, as explained above, or if it serves 100 or more services in use at any one time.  RCW 70.119.030(1)(a).

    [3]Cities and counties are not required to have building departments.  Those that do not must "contract with another county, city, or inspection agency approved by the county or city for enforcement of the state building code within its jurisdictional boundaries."  RCW 19.27.050.  Therefore, in some cities and counties the entity with authority to determine whether an adequate water supply exists for a building to be permitted may be a contracted agency.  For convenience, the phrase "local building department" will be used in this opinion to refer both to building departments and to agencies contracted to perform the duties of building departments.

    [4]The provisions of RCW 19.27.097(1) may not apply in all areas of the state.  RCW 19.27.097(2) authorizes the county and the state to "mutually determine" those areas of the county in which the requirements of RCW 19.27.097(1) will not apply.  This determination may be made for any county that is not required, or that does not choose, to prepare a comprehensive land use plan under RCW 36.70A.040(1).  In areas where RCW 19.27.097(1) does not apply, the local building department will not need to determine whether there is an adequate water supply before issuing a building permit.  Of course, these areas still will be subject to other state and local laws regarding water use and availability.

    [5]Even a person with a water right under RCW 90.03 or 90.44 may be unable to take water at certain times.  This is because the Department of Ecology regulates the appropriation of water under a priority system commonly described as the "first in time shall be the first in right."  See RCW 90.03.010, 90.44.020.  Under this doctrine, more recently developed water rights can be curtailed when necessary to protect more senior water rights.  This doctrine applies to all water rights, including those for which a permit is not required.  Although RCW 19.27.097 states that a water right permit from the Department of Ecology may be evidence of an adequate water supply, we believe that, because of the first-in-time doctrine, it may not be sufficient evidence in cases where water is not actually available for withdrawal.  In areas experiencing drought severe enough to deprive those holding junior water rights of water, for example, a local building department could require evidence in addition to the water right that a sufficient quantity of water actually would be available for the building to be constructed.

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