NATION v. State of Wash.

241 P.3d 1220

LUMMI INDIAN NATION; Makah Indian Tribe; Quinault Indian Nation; Squaxin Island Indian Tribe; Suquamish Tribe; and the Tulalip Tribes, federally recognized Indian tribes; Joan Burlingame, an individual; Lee Bernheisel, an individual; Scott Cornelius, an individual; Peter Knutson, an individual; Puget Sound Harvesters; Washington Environmental Council; Sierra Club; and The Center for Environmental Law and Policy, Respondents/Cross-Appellants,

v. STATE of Washington; Christine Gregoire, Governor of the State of Washington; Washington Department of Ecology; Jay Manning, Director of the Washington Department of Ecology; Washington Department of Health; and Mary Selecky, Secretary of Health for the State of Washington, Appellants/Cross-Respondents,Washington Water Utilities Council; Cascade Water Alliance, and Washington State University, Appellants/Cross-Respondents.

No. 81809-6.

Supreme Court of Washington,En Banc.

Argued Jan. 12, 2010.

Decided Oct. 28, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Michael Paul Ruark, Attorney at Law, Lake Forest Park, WA, Alan Myles Reichman, Stephen H. North, Mark Hodgeman Calkins, Office of the Attorney, Philip Thomas McDonald, Joseph Anthony Rehberger, Cascadia Law Group, P.L.L.C., Olympia, Mary E. McCrea, Attorney at Law, Winthrop, WA, Adam Waldon Gravley, Tadas A. Kisielius, GordonDerr, L.L.P., Seattle, WA, for Appellants/Cross-Respondents.

Janette K. Brimmer, Kristen L. Boyles, Earthjustice, John B. Arum, Attorney at Law, Brian Cammiade Gruber, Ziontz Chestnut Varnell Berley & Slonim, Mason D. Morisset, Morisset Schlosser Jozwiak & McGaw, Seattle, WA, Shaun Alaric Goho, Harvard Law School, Cambridge, MA, Harry Laurence Johnsen, III, Attorney at Law, Bellingham, WA, Karen Allston, Quinault Indian Nation, Taholah, WA, Kevin R. Lyon, Squaxin Island Legal Department, Shelton, WA, Melody L. Allen, Suquamish Tribe, Office of Tribal Attorney, Suquamish, WA, Kimberly Louise Ordon, Attorney at Law, Duvall, WA, A. Reid Allison III, Tulalip Tribes, Tulalip, WA, for Respondents/Cross-Appellants.

Thomas Mann Pors, Law Office of Thomas M. Pors, Seattle, WA, amicus counsel for Firgrove Mutual Water, Fruitland Mutual Water Company, Graham Hill Mutual Water Company, Inc., Mt. View-Edgewood Water Company, Nob Hill Water Association, Rainier View Water Company, Spanaway Water Company, Summit Water and Supply Company & Washington Water Services Company.

CHAMBERS, J.

¶ 1 In 1998, this court held that under then-existing law, new private water rights did not fully vest until the water was put to a beneficial use, and not merely when the “pumps and pipes” capacity to use the water was built. Dep't of Ecology v. Theodoratus, 135 Wash.2d 582, 586, 957 P.2d 1241 (1998). We cautioned then that we were not considering municipal water rights, which often receive separate treatment in water law. Id. at 594, 957 P.2d 1241. In response to our opinion, the legislature amended the municipal water law, Second Engrossed Second Substitute H.B. 1338, 58th Leg., Reg. Sess. (Wash.2003) (SESSHB 1338), to, among other things, explicitly define certain nongovernmental water suppliers as municipal and to make that definition retroactive. We are now asked whether these amendments violate separation of powers or facially violate due process. We conclude they do not. We reverse in part and affirm in part.

BACKGROUND

¶ 2 The beneficial and wise use of water has been a public concern since before we achieved statehood. Code of 1881, ch. 191, at 434; Ellis v. Pomeroy Improvement Co., 1 Wash. 572, 577-78, 21 P. 27 (1889) (discussing territorial water law). By 1891, our legislature was regulating water, Laws of 1891, ch. 142, at 327, and by 1917, our legislature had declared that:

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.

Laws of 1917, ch. 117, § 1 (currently codified as RCW 90.03.010). The beneficial use of waters is a priority in our state; our state constitution itself specifically provides that “[t]he use of the waters of this state for irrigation, mining and manufacturing purposes shall be deemed a public use.” Wash. Const. art. XXI, § 1. In partial implementation of that principle, water rights can be lost if they are not used, in whole or in part, for five or more years. RCW 90.14.160 -.180. Water rights can also be lost if they are abandoned. Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wash.2d 769, 781, 947 P.2d 732 (1997). However, municipal water supply rights (among many others) are not subject to relinquishment. RCW 90.14.140(2)(d).

[1] [2] ¶ 3 Like most Western states, Washington regulates “the acquisition of appropriative rights to the use of public waters and ... the distribution of water to those entitled to receive it.” 1 Wells A. Hutchins, Water Rights Laws in the Nineteen Western States 7 (1971). Generally speaking, there is no private right to own the waters that flow across Washington State. Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 583, 38 P. 147 (1894). Instead, a private right to use water can be acquired, and water can be owned once it is diverted for that use. Geddis v. Parrish, 1 Wash. 587, 590-91, 21 P. 314 (1889) (citing Lower Kings River Water Ditch Co. v. Kings River & Fresno Canal Co., 60 Cal. 408 (1882)); Dep't of Ecology v. U.S. Bureau of Reclamation, 118 Wash.2d 761, 767, 827 P.2d 275 (1992) (citing Madison v. McNeal, 171 Wash. 669, 674, 19 P.2d 97 (1933)). As a learned treatise summarizes it:

The appropriative right does not extend to ownership of the corpus of water while it remains in the natural source of supply. It is a right to the use of the water-a usufruct. Inherent in the right of appropriation are the requirements that the use made of the appropriated water shall be a beneficial one, and that the right to divert and use the water extends only to the quantity actually applied to such beneficial use. The appropriative right, therefore, is not merely a right to the use of the water; it is a right of beneficial use. This is the view that the courts have taken through the years, probably without significant dissent.

1 Hutchins, supra, at 440.

[3] ¶ 4 While the details have changed over the years, generally, our regulatory scheme has sought to balance vigorous beneficial use of the State's waters without impairing existing uses. To that end, Washington has a multistep procedure before new water rights can be acquired. While the details will vary depending on whether the applicant seeks to appropriate surface or ground water, among other things, the would-be user first submits an application to the Department of Ecology. RCW 90.03.250; see also ch. 90.44 RCW (ground water). The department may give the applicant a temporary permit to use water while the application is being evaluated. RCW 90.03.250; see also RCW 90.03.260, .290. Second, once the application is complete, the department directs the applicant to publish notice in a paper of general circulation. RCW 90.03.280. Meanwhile, the department determines “what water, if any, is available ... and find[s] and determine[s] to what beneficial use or uses it can be applied.” RCW 90.03.290(1). Fourth, if the department is satisfied that water is available and the proposed use is a beneficial use, it issues a permit specifying the amounts of water that can be taken and the beneficial uses to which that water may be applied to. RCW 90.03.290(3). A water right permit represents only an inchoate right, which does not become choate until the water right is perfected. RCW 90.03.330; Theodoratus, 135 Wash.2d at 589-90, 957 P.2d 1241; Ellis, 1 Wash. at 577, 21 P. 27. Before the right is perfected, the applicant has only

“an incomplete appropriative right in good standing. It comes into being as the first step provided by law for acquiring an appropriative right is taken. It remains in good standing so long as the requirements of law are being fulfilled. And it matures into an appropriative right on completion of the last step provided by law.”

Theodoratus, 135 Wash.2d at 596, 957 P.2d 1241 (quoting 1 Hutchins, supra, at 226). Permits can be extended for good cause shown, and permits can be canceled if their terms are violated. RCW 90.03.320. Water rights can also be obtained by condemnation. RCW 90.03.040.

¶ 5 Once the water right is perfected, a water right certificate is issued. RCW 90.03.330. This certificate relates back to the time of application, so long as the rights were perfected with reasonable diligence.

RCW 90.03.340; Avery v. Johnson, 59 Wash. 332, 335, 109 P. 1028 (1910). Given that the rights of junior water rights holders are subordinate to earlier rights holders, RCW 90.03.010, and given that water is an increasingly scarce resource, that relation back has significant value. Once rights are perfected, the point of diversion, the use, and the ownership of those rights may be changed or transferred, though only to the extent the water right has been historically put to beneficial use and other rights holders are not harmed. RCW 90.03.380(1); Okanogan Wilderness, 133 Wash.2d at 777-78, 947 P.2d 732; see also R.D. Merrill Co. v. Pollution Control Hearings Bd., 137 Wash.2d 118, 128-29, 969 P.2d 458 (1999); 1 Hutchins, supra, at 633-34 (noting that with some exceptions, place of use may not be changed without administrative consent). At the time of Theodoratus, disputes about water rights were first taken to the Pollution Control Hearings Board. E.g., Theodoratus, 135 Wash.2d at 589, 957 P.2d 1241; see also former RCW 43.21B.110 (1998). After Theodoratus, the legislature directed that water rights claimants file a petition with the Department of Ecology that could be referred...