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AGO Opinions with Topic: WATER
AGO 2006 No. 17 >  September 25, 2006
WATER - WATER RIGHTS - DEPARTMENT OF ECOLOGY
Extent of Department of Ecology’s discretion in reviewing decisions of local water conservancy boards 1. In reviewing a water conservancy board record of decision concerning a water right transfer application, the Department of Ecology is not limited to reviewing the record established by the water conservancy board but may base its decision upon an independent factual investigation. 2. In reviewing a water conservancy board record of decision concerning a water right transfer application, the Department of Ecology is not required to: 1) defer to the water conservancy board’s findings of fact, or 2) defer to the board’s interpretation of the law. 3. A water conservancy board, in making a decision concerning a water right transfer application, is not legally required to follow policies or guidelines of the Department of Ecology which have not been adopted as statutes or administrative rules; however, the Department of Ecology may refer to and follow its own policies or guidelines in reviewing the local board’s decision.
AGO 2005 No. 17 >  November 18, 2005
WATER - WATER RIGHTS - DEPARTMENT OF ECOLOGY - RULES AND REGULATIONS
Interpretation of statutory language exempting withdrawals of groundwater for stock-watering from permitting requirements RCW 90.44.050 exempts withdrawals of groundwater for stock-watering purposes from the permitting requirement, without setting a numeric limit on the quantity of water withdrawn.  2. The Department of Ecology does not have authority to impose a categorical limit on the quantity of groundwater that may be withdrawn for stock-watering without a permit. In certain circumstances, the Department of Ecology’s statutory authority to regulate the use of water may affect or limit such withdrawals, just as it may affect or limit withdrawals for other purposes.3. An agency may not alter its interpretation of a statute in a manner that is inconsistent with statutory language and legislative intent to address changed societal conditions.
AGO 1970 No. 27 >  December 14, 1970
WATER - PUBLIC LANDS - RIGHTS OF PUBLIC TO USE OF OCEAN BEACHES
WATER - PUBLIC LANDS - RIGHTS OF PUBLIC TO USE OF OCEAN BEACHES (1) Without regard to any other property interests or rights which the state may have, members of the public have the right to use and enjoy the wet and dry sand areas of the ocean beaches of the state of Washington by virtue of a long-established customary use of those areas. (2) The right of members of the public to use and enjoy the wet and dry sand areas of the ocean beaches of Washington by virtue of a long-established customary use of those areas does not presently extend to such ocean beach areas as are within the exterior boundaries of the Quinault Indian Reservation.
AGO 1972 No. 15 >  July 25, 1972
COUNTIES - SEWERS - WATER - ESTABLISHMENT OF COUNTY WATER AND/OR SEWERAGE SYSTEMS UNDER CHAPTER 36.94 RCW
COUNTIES ‑- SEWERS ‑- WATER ‑- ESTABLISHMENT OF COUNTY WATER AND/OR SEWERAGE SYSTEMS UNDER CHAPTER 36.94 RCW (1) Under chapter 36.94 RCW, a county may either construct a single system of water and/or sewerage disposal for the entire county or it may create several separate such systems for separate portions of the county.(2) If a county establishes separate systems of water and/or sewerage disposal for separate parts of the county, each system must be covered by a separate "general plan" under RCW 36.94.030, and there must be a separate review committee under RCW 36.94.050 for each such proposed system and plan.
AGO 1983 No. 23 >  November 2, 1983
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - WATER - POLLUTION
RELATIONSHIP BETWEEN FEDERAL AND WASTE DISCHARGE PERMITS (1) The Department of Ecology may not concur in the proposed issuance of a wate discharge permit by the United States Environmental Protection Agency under § 301(h) of the Federal Clean Water Act if the proposed federal permit contains effluent quality limitations which require less waste treatment than is required under state law. (2) A municipality is required to obtain a waste discharge permit from the Department of Ecology under RCW 90.48.162 prior to discharge of its sewerage wastes into marine waters of the state even though the municipality already holds a waste discharge permit issued by the Environmental Protection Agency under § 301(h) of the Federal Clean Water Act which was concurred in by the Department of Ecology under that provision. (3) The Department of Ecology is not precluded by federal law from including in a state permit such waste treatment requirements, mandated by state law, as are more stringent than those contained in a permit which was issued by the Environmental Protection Agency without express state concurrence. (4) While state law does not expressly prohibit a municipality from discharging wastes from its sewerage system into Puget Sound, or other marine waters, without providing secondary treatment, all waste proposed for discharge into such waters must be provided with "all known, available, and reasonable methods of treatment" prior to being discharged into those waters‑-regardless of the quality of the water.
AGO 1975 No. 25 >  December 30, 1975
DISTRICTS - WATER - ELECTIONS - DATE UPON WHICH TERM OF NEXT WATER DISTRICT COMMISSIONER BEGINS
DISTRICTS ‑- WATER ‑- ELECTIONS ‑- DATE UPON WHICH TERM OF NEXT WATER DISTRICT COMMISSIONER BEGINS Under RCW 29.13.050, which has impliedly amended the preexisting provisions of RCW 57.12.030, the term of office of a water district commissioner elected on the first Tuesday following the first Monday in November of an odd-numbered year is to begin as of noon on the second Monday in January following his election.
AGO 1984 No. 19 >  August 10, 1984
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."
AGO 1963 No. 45 >  August 5, 1963
DISTRICTS - WATER - COMMISSIONERS - GROUP MEDICAL INSURANCE PLAN OR HEALTH CARE PLAN FOR EMPLOYEES AND DEPENDENTS - AUTHORITY - COMMISSIONERS NOT INCLUDED
DISTRICTS ‑- WATER ‑- COMMISSIONERS ‑- GROUP MEDICAL INSURANCE PLAN OR HEALTH CARE PLAN FOR EMPLOYEES AND DEPENDENTS ‑- AUTHORITY ‑- COMMISSIONERS NOT INCLUDED (1) A water district has the power to initiate and maintain a group medical insurance plan or health care plan for its employees and their dependents and to pay the entire cost thereof. (2) Same: A water district does not have any authority to pay all or any part of the cost of such plan for the benefit of the commissioners of the district since they are officers not employees of the district.
AGO 1976 No. 12 >  June 4, 1976
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - WATER - ISSUANCE OF LIMITED TERM WATER USE PERMITS
OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- WATER ‑- ISSUANCE OF LIMITED TERM WATER USE PERMITS If, in order to attain "maximum net benefits" and protect the public welfare and interest against the long range detrimental effects of a perpetual water use not so restricted, the state department of ecology, in issuing a surface water right permit pursuant to RCW 90.03.290, determines to include a provision authorizing use of such waters unconditionally for specified initial period of time (e.g., fifty years), with any authorization to withdraw for further periods of time made dependent upon subsequent determinations by the department involving public needs for the waters involved, that action is likely to be upheld by the courts.
AGO 1991 No. 28 >  September 16, 1991
BOUNDARY REVIEW BOARD - DEPARTMENT OF HEALTH - WATER - COUNTIES - CITIES AND TOWNS
Authority of Boundary Review Board to Review Extension of Water Service When the Extension Occurs Pursuant to a Coordinated Water System Plan RCW 70.116.020 establishes the procedure for adopting coordinated water system plans in areas designated as critical water supply service areas.  RCW 36.93.090(5) provides that a boundary review board may review extension of water service by a city or town outside existing corporate boundaries.  A boundary review board does not have authority under RCW 36.93.050(5) to review extension of water service beyond corporate city or town limits if it is consistent with the coordinated water system plan adopted pursuant to RCW 70.116.020.
AGO 1992 No. 8 >  June 1, 1992
DISTRICTS - WATER - COMMISSIONERS - OFFICES AND OFFICERS - COMPENSATION - INSURANCE
Applicability of RCW 41.04.190 to Insurance Benefits Provided to Water District Commissioners Pursuant to RCW 57.04.190 RCW 41.04.190 provides that insurance benefits are not additional compensation for county elected officials.  RCW 41.04.190 does not apply to insurance benefits provided to water district commissioners pursuant to RCW 57.08.100.
AGO 1987 No. 3 >  January 15, 1987
DISTRICTS - WATER
AUTHORITY TO FLUORIDATE WATER Water districts do not have authority to fluoridate water by state statute.  Assuming water district commissioners obtain authority to fluoridate by county, city or town ordinance, fluoridation for the water districts' users would be proper even if it incidentally resulted in delivery of fluoridated water outside the district.
AGO 1992 No. 17 >  July 28, 1992
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.
AGO 1967 No. 19 >  June 6, 1967
DISTRICTS - WATER - DEBT LIMITATION
DISTRICTS - WATER - DEBT LIMITATION The debt limitation of a water district is to be calculated on the basis of the actual value of the taxable property located therein, and not upon the basis of the assessed valuation of such property.
AGO 1967 No. 25 >  July 6, 1967
DISTRICTS - WATER - INVESTMENT OF SURPLUS FUNDS
DISTRICTS - WATER - INVESTMENT OF SURPLUS FUNDS A board of commissioners of a water district may, in its resolution authorizing the investment of surplus funds in a bank or savings and loan association, direct the county treasurer, as agent for the water district, to invest the funds in a specific bank or association designated in the resolution.
AGO 1968 No. 8 >  February 19, 1968
OFFICES AND OFFICERS - STATE - DEPARTMENT OF WATER RESOURCES - CITIES AND TOWNS - WATER - APPROPRIATION OF PUBLIC WATERS FOR NONCONSUMPTIVE MUNICIPAL USE
OFFICES AND OFFICERS - STATE - DEPARTMENT OF WATER RESOURCES - CITIES AND TOWNS - WATER - APPROPRIATION OF PUBLIC WATERS FOR NONCONSUMPTIVE MUNICIPAL USE Where the public waters of a stream are "fully appropriated," a city may nevertheless acquire a permit from the department of water resources pursuant to the provisions of RCW 90.03.290 to appropriate and apply to a "nonconsumptive municipal use" a portion of said waters where (1) the proposed "nonconsumptive municipal use" would not impair existing rights or be detrimental to the public welfare, and (2) there are, in fact, waters in the stream which are available for appropriation for a beneficial use within the meaning of RCW 90.03.290.
AGO 1996 No. 19 >  December 11, 1996
WATER - DEPARTMENT OF ECOLOGY - DEPARTMENT OF HEALTH - CITIES - COUNTIES - DISTRICTS
Interpretation of legislation recognizing interties between public water supply systems 1.  The procedure established in RCW 90.03.383(3) for modifying a water right permit based on an intertie between public water supply systems applies only to interties existing and in use on January 1, 1991. 2.  Under RCW 90.03.383(3), when the Department of Ecology processes a change in place of use occasioned by an intertie between public water supply systems, the resulting permit(s) should show the quantity of water delivered through the intertie as well as the change in place of use. 3.  Under RCW 90.03.383(4), the Department of Ecology's scope of inquiry is whether each system's use is within the annual and instantaneous withdrawal rate specified in its water right authorization and whether the exchange or delivery through the intertie adversely affects existing water rights.  
AGO 1997 No. 6 >  October 10, 1997
WATER - WATER RIGHTS - WELLS - STATUS IN WATER RIGHTS SYSTEM OF EXEMPT GROUND WATER WITHDRAWALS.
WATER - WATER RIGHTS - WELLS - Status in water rights system of exempt ground water withdrawals. 1.Where a property owner wishes to develop land and supply the development with domestic water from several wells, and each well will pump less than 5000 gallons per day but all the wells together will pump more than 5000 gallons per day, the project is a single withdrawal of ground water and is not exempt from the permit requirements of chapters 90.44 and 90.03 RCW.2.There is no statutory provision for intertying, pursuant to RCW 90.03.383, water systems deriving from ground water withdrawals which were exempt from permitting pursuant to RCW 90.44.050; the intertie statute could be applied if the exempt withdrawals applied for a permit, or were consolidated (pursuant to Laws of 1997, ch. 446) with another water right with a permit or certificate.3.If the owner of a water right deriving from an exempt ground water withdrawal applies for a permit for the withdrawal pursuant to RCW 90.44.050, the Department of Ecology would apply the four-element test contained in RCW 90.03.290 in deciding whether to grant a permit.4.There is no statutory or other lawful basis for issuing a water rights certificate to the holder of a water right based on an exempt ground water withdrawal, unless either (1) the owner of the right applies for and receives a permit or (2) the exempt right is first consolidated with a right covered by a permit or certificate.5.There is no current statutory authority for transferring a water right deriving from an exempt ground water withdrawal to a different place of use and/or a different purpose of use pursuant to RCW 90.44.100, RCW 90.03.380 and related laws, unless (1) the owner of the right applies for and receives a permit or (2) the exempt right is first consolidated with a right covered by a permit or certificate.
AGO 1950 No. 243 >  March 28, 1950
WATER - PUBLIC SERVICE COMPANY SELLING ASSETS TO A MUTUAL WATER COMPANY - JURISDICTION OF PUBLIC SERVICE COMMISSION
WATER ‑- PUBLIC SERVICE COMPANY SELLING ASSETS TO A MUTUAL WATER COMPANY ‑- JURISDICTION OF PUBLIC SERVICE COMMISSION Public Service Commission has jurisdiction over a mutual water company and could require it to continue service to non-members who refused to join it but who had been receiving water service.
AGLO 1976 No. 22 >  March 23, 1976
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - WATER - CONDEMNATION - EMINENT DOMAIN
REACQUISITION OF WATER RIGHTS BY STATE AGENCIES The state department of ecology may not condition a water right permit issued under RCW 90.03.290 by providing, pursuant to an administrative regulation, that once such a permit has been in effect for at least twenty-five years the state, upon giving five years' notice, may utilize a certain prescribed formula for the measurement of damages if it exercises its power of eminent domain to condemn the water right embodied in the permit ‑ in lieu of paying full compensation as ascertained by the court or jury under Article I, § 16 (Amendment 9) of the state constitution.
AGLO 1975 No. 31 >  March 19, 1975
DISTRICTS - WATER - BOARD OF COMMISSIONERS - INSURANCE
LIABILITY INSURANCE FOR WATER DISTRICT COMMISSIONERS Under RCW 57.08.105, the board of commissioners of a water district is authorized to purchase liability insurance to protect its own members against liability for personal or bodily injuries and property damage arising from their acts or omissions while performing or in good faith purporting to perform their official duties.
AGLO 1979 No. 41 >  December 20, 1979
DISTRICTS - SEWER - WATER - DRAINAGE - CITIES AND TOWNS - RECORDING UNDER RCW 65.08.170 AS CONDITION PRECEDENT TO IMPOSITION OF CONNECTION CHARGES
DISTRICTS ‑- SEWER ‑- WATER ‑- DRAINAGE ‑- CITIES AND TOWNS ‑- RECORDING UNDER RCW 65.08.170 AS CONDITION PRECEDENT TO IMPOSITION OF CONNECTION CHARGES Although RCW 65.08.170 requires a city, town, or other municipality (as defined in RCW 35.91.020) to record certain connection charges in the office in which deeds are recorded, neither that statute nor any other applicable law purports to set forth the legal consequences of a failure to comply or, specifically, to say that recording in any way affects the legality of those charges as between the municipality and those who tap in, or hook up, to and use the particular facilities in question; therefore, a person may not connect with or tap into sewer or water facilities without paying the connection fee even though such fee has not been recorded pursuant to RCW 65.08.170.
AGLO 1979 No. 42 >  December 28, 1979
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - WATER - RIVERS - FLOOD CONTROL - AUTHORITY OF DEPARTMENT OF ECOLOGY TO REGULATE FLOOD CONTROL FACILITIES
OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- WATER ‑- RIVERS ‑- FLOOD CONTROL ‑- AUTHORITY OF DEPARTMENT OF ECOLOGY TO REGULATE FLOOD CONTROL FACILITIES

(1) Under RCW 86.16.035 the State Department of Ecology is authorized, in its discretion, to promulgate rules regulating the times when (a) the owner or operator of a "flood control facility" or (b) the owner or operator of any dam or other "water flow control facility" may release impounded water or otherwise alter the stream flow if the released water or altered stream flow might create a danger to life or property downstream.

(2) Under the same statute the Department of Ecology is also authorized to promulgate regulations requiring the notification of persons downstream or the posting of signs prior to the release of impounded water or other alteration in the stream flow by (a) a flood control dam or (b) any dam or water flow control facility when such release or alteration might create a danger to life or property below the dam.

AGLO 1978 No. 36 >  November 9, 1978
DISTRICTS - SEWER - WATER - EMINENT DOMAIN - CONDEMNATION OF WATER SUPPLY LINES BY SEWER DISTRICT
DISTRICTS ‑- SEWER ‑- WATER ‑- EMINENT DOMAIN ‑- CONDEMNATION OF WATER SUPPLY LINES BY SEWER DISTRICT Where a sewer district, acting through its governing board of commissioners, has elected to construct, maintain ad operate a water supply system in accordance with RCW 56.20.015 as amended by § 9, chapter 300, Laws of 1977, such sewer district is then authorized by RCW 56.08.010 to acquire by condemnation ". . . water supply lines located within [the] district and owned by a private water company."
AGLO 1974 No. 77 >  August 30, 1974
DISTRICTS - WATER - COUNTY COMMISSIONERS
APPROVAL OF FORMATION OF WATER DISTRICT In acting upon a proposal to form a water district under RCW 57.02.040, a board of county commissioners is to make certain determinations; however, the board may properly receive and consider the advice of the appropriate state agencies in connection therewith.
AGO 2008 No. 5 >  March 27, 2008
COUNTIES - HEALTH - BOARD OF HEALTH - WATER - PUBLIC UTILITY DISTRICTS
Authority of county health board to order fluoridation of water supply. 1.  A county health board may lawfully order the fluoridation of a water supply system owned and operated by a public utility district and located within the county’s jurisdiction.  2.  Subject to constitutional requirements, a county health board may lawfully order a public utility district to fluoridate a discrete portion of the PUD’s water supply system.  3.  A county health board may enact a regulation requiring the fluoridation of water supply systems generally but, subject to constitutional requirements, a generally applicable regulation is not prerequisite to the issuance of enforcement orders on the subject.  4.  A county health board may lawfully order the fluoridation of a water supply system where the order is contingent upon a third-party source of funding for the fluoridation process.
AGO 2009 No. 6 >  September 21, 2009
WATER - WATER RIGHTS - WELLS - INTERLOCAL COOPERATION ACT
Inter-pretation of statutes exempting certain withdrawals of groundwater from permitting requirements, and authorizing the Department of Ecology to withdraw waters from appropriation 1.      The statutory exemption from the permitting requirement for use in watering lawns and noncommercial gardens is not included within the exemption for domestic use.  2.      The Department of Ecology lacks the authority to impose lower or different limits on exempt withdrawals of groundwater than are provided in statute by “partially withdrawing” the waters from additional appropriation.  3.      The authority of the Department of Ecology to withdraw waters from new appropriations applies to both permitted and permit-exempt uses of groundwater.  4.      The Interlocal Cooperation Act is not an independent source of agency authority.
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