AGO 1968 No. 8 - Feb 19 1968
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.
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February 19, 1968
Honorable Stewart Bledsoe
State Representative, 13th District
Ellensburg, Washington 98926
Cite as: AGO 1968 No. 8
By letter previously acknowledged you requested the opinion of this office on a question which we have paraphrased as follows:
Where the public waters of a stream are "fully appropriated," may a city, under any circumstances, 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?
We answer your question in the affirmative as qualified and explained in the following analysis.
In asking for our opinion, you requested that we assume the request to the department of water resources to appropriate and apply public waters of a stream to a "nonconsumptive" municipal use, if granted, would not impair existing rights or be detrimental to the public welfare within the meaning of RCW 90.03.290. You further asked us to assume that the [[Orig. Op. Page 2]] public waters of said stream have been "fully appropriated," i.e., water rights have been established in such amounts and for such uses that, if all such rights are exercised, no further rights of a consumptive nature could be authorized without interfering with prior established rights.
In 1917, the legislature of the state enacted a comprehensive act relating to the acquisition and establishment of rights to make use of public waters of the state. See chapter 117, Laws of 1917. Commonly referred to as the "water code," this act is now codified, as amended, in chapter 90.03 RCW.
RCW 90.03.010, the first section of the water code, provides in pertinent part:
"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, and any 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. . . ." (Emphasis supplied.)
The "manner" for acquiring a new water right is set forth in RCW 90.03.250 through RCW 90.03.340. The first sentence of the first of these sections provides:
"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 supervisor of water resourcesfor 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 criteria governing the issuance of this permit, together with the functions of the supervisor of water resources [[Orig. Op. Page 3]] (now the director of the department of water resources)1/ are spelled out in RCW 90.03.290 as follows:
"When an application complying with the provisions of this chapter and with the rules and regulations of the supervisor of water resources has been filed, the same shall be placed on record in the office of the supervisor, and it shall be his duty to investigate the application, and determine what water, if any, is available for appropriation, and find and determine to what beneficial use or uses it can be applied. . . . The supervisor shall make and file as part of the record in the matter, written findings of fact concerning all things investigated, andif he shall find that there is water available for appropriation for a beneficial use, and the appropriation thereof as proposed in the application will not impair existing rights or be detrimental to the public welfare, he shall issue a permit stating the amount of water to which the applicant shall be entitled and the beneficial use or uses to which it may be applied: Provided, That where the water applied for is to be used for irrigation purposes, it shall become appurtenant only to such land as may be reclaimed thereby to the full extent of the soil for agricultural purposes. But where there is no unappropriated water in the proposed source of supply, or where the proposed use conflicts with existing rights, or threatens to prove detrimental to the public interest, having due regard to the highest feasible development of the use of the waters belonging to the public, it shall be duty of the supervisor to reject such application and to refuse to issue the permit asked for. If [[Orig. Op. Page 4]] the permit is refused because of conflict with existing rights and such applicant shall acquire same by purchase or condemnation under RCW 90.03.040, said supervisor may thereupon grant such permit. Any application may be approved for a less amount of water than that applied for, if there exists substantial reason therefor, and in any event shall not be approved for more water than can be applied to beneficial use for the purposes named in the application. In determining whether or not a permit shall issue upon any application, it shall be the duty of the supervisor to investigate all facts relevant and material to the application. . . ." (Emphasis supplied.)
In considering your question, it is important to note that, by RCW 90.03.290, the supervisor shall issue a permit if he finds:
(1) That there is "water available for appropriation for a beneficial use,"
(2) That the appropriation proposed in the application would not "impair existing rights," and
(3) That the appropriation proposed would not "be detrimental to the public welfare."
It is also noted that RCW 90.03.290 provides that an application must be rejected if "there is no unappropriated water in the source of supply."
Your question is whether, if the assumptions are made as set forth in the first paragraph of this analysis, a municipal corporation may acquire a water right for a "nonconsumptive" municipal use under the water code.2/ The answer to this [[Orig. Op. Page 5]] question depends on whether a "fully appropriated" stream, as previously defined, is necessarily a stream which has "no unappropriated water" remaining. Or, conversely, can it be a stream that has water "available for appropriation for a beneficial use?"
In answering this question, it should be first pointed out that while a water right is a species of real property, it is not a right as such, to the corpus or body of any specific tangible portion of a stream. Madison v. McNeal, 171 Wash. 669, 19 P.2d 97 (1933). It is, instead, a usufructuary right; a right to make use of a flow of the stream. Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 38 Pac. 147 (1894). The right "consists not so much of the fluid itself as the advantage of its use." Weil, Water Rights in the Western States, 18, 20 (3rd Ed. 1911). See, also, Hutchins,Selected Problems in the Law of Water Rights in the West, 27 (1942). As a part of a water right, the holder thereof is entitled to have the water flow in the stream at his point of diversion in amounts sufficient to satisfy his right. See,Hutchins, supra, 330. However, such holder should not be concerned, so far as quantity is concerned, with the uses made of the waters of a stream prior to reaching his point of diversion so long as his right is protected.
It is also noted that not only by legislative activity, but by judicial decision, the policy of the state of Washington has been one of utilizing our water resources efficiently and beneficially. See, chapter 117, Laws of 1917; § 2, chapter 133, Laws of 1967; State ex rel. Liberty Lake Irrigation Co. v. Superior Court, 47 Wash. 310, 91 Pac. 968 (1907); and Brown v. Chase, 125 Wash. 542, 217 Pac. 23 (1923). See, also, Horowitz,Riparian and Appropriation Rights to the Use of Water in Washington, 7 Wash. L. Rev. 197, 207-211 (1932).
With these propositions in mind, it is our opinion that even though a stream is "fully appropriated," there may be waters therein which are "available for appropriation for a beneficial use" within the meaning of RCW 90.03.290, the answer depending on such factual determinations as the locations of the point of diversion of the proposed appropriation and the point of return to the stream of the diverted waters, the quality of the waters returned to the stream, whether there is public water physically present at the proposed point of diversion in quantities sufficient to satisfy the requested appropriation, and whether the use of such waters is truly "nonconsumptive" [[Orig. Op. Page 6]] in nature.
Accordingly, assuming that a particular city's proposed "nonconsumptive" municipal use of a portion of the public waters of a stream would neither impair existing rights nor be detrimental to the public welfare within the meaning of RCW 90.03.290,supra, and further assuming that, based upon an application of such factors as those last above noted, it is determined that there remain waters in the stream which are "available for appropriation for a beneficial use" even though the waters of the stream have previously been "fully appropriated," it is our opinion that the city may acquire a permit from the department of water resources to appropriate and apply the portion of said waters to its proposed nonconsumptive municipal use.3/
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
CHARLES B. ROE, JR.
Assistant Attorney General
*** FOOTNOTES ***
1/The powers formerly granted to the "supervisor" (i.e., supervisor, division of water resources, department of conservation) are now vested in the department of water resources. See, chapter 242, Laws of 1967.
2/By "nonconsumptive" municipal use, we understand you to mean that waters diverted from a water source would be returned to the same source at or near the point of diversion in the same quantity and in substantially the quality as that originally diverted. For a discussion of the problems of characterizing a use "consumptive" or "nonconsumptive" see 1 Clark,Waters and Water Rights, § 55.2 (1967).
3/We do not, in this opinion, deal with the problem faced by the department of water resources when an application for a permit for a consumptive use is received relating to a "fully appropriated" water source of determining whether "public water" is available for appropriation for beneficial uses.