Department of Ecology v. U.S. Bureau of Reclamation

• Decision Date: 09 April 1992
• Docket Number: No. 57563-1,57563-1
• Citation: 827 P.2d 275,118 Wn.2d 761
• Parties: The DEPARTMENT OF ECOLOGY, Respondent, v. The U.S. BUREAU OF RECLAMATION, Defendant, Quincy-Columbia Basin Irrigation District, East Columbia Basin Irrigation District, and South Columbia Basin Irrigation District, Appellants.
• Court: Washington Supreme Court

Page 761

118 Wn.2d 761

827 P.2d 275

The DEPARTMENT OF ECOLOGY, Respondent, v. The U.S. BUREAU OF RECLAMATION, Defendant,

Quincy-Columbia Basin Irrigation District, East Columbia

Basin Irrigation District, and South Columbia

Basin Irrigation District, Appellants.

No. 57563-1.

Supreme Court of Washington,

En Banc.

April 9, 1992.

Lemargie & Whitaker, Richard A. Lemargie and Baird & White, John W. Baird, Ephrata, for appellants.

Kenneth O. Eikenberry, Atty. Gen. and Thomas McDonald, Asst. Atty. Gen., Olympia, for respondent.

JOHNSON, Justice.

The Washington State Department of Ecology (Department) granted to J.M. Hanson a permit to appropriate water from a stream running across his property. Hanson's property is located within the boundaries of a federal irrigation project and the stream carries, at least in part, water that the project diverted from the Columbia River pursuant to the federal government's own rights of appropriation.

A federal agency and three irrigation districts appealed the Department's action to the Pollution Control Hearings Board (PCHB), arguing that the permit interfered with the federal government's prior appropriated rights in the water. The PCHB decided on summary judgment that the federal government's rights prevented reappropriation to another party. The Superior Court reversed the PCHB and remanded for further factfinding. The irrigation districts appealed directly here.

We hold the Department erred in granting Hanson's permit. The water in Hanson's stream is still subject to the federal government's right of appropriation, as it has not yet left the boundaries of the irrigation project, and it cannot be reappropriated to another. We reverse the Superior Court and reinstate the PCHB's summary judgment.

I

The Columbia River Basin Irrigation Project is a massive federal project providing irrigation water for lands along the Columbia River. ¹ In order to undertake this project, the federal government acquired appropriation rights in the Columbia River. The federal government then built the facilities necessary to divert that water and make it available to farmers in the Columbia River basin. The federal government, through the United States Bureau of Reclamation, contracted with local irrigation districts to operate and maintain the facilities and to deliver the water to the basin's farmlands. The contracts provide for repayment of the federal government's costs of constructing the facilities.

Certain farmlands (known as "farm units") receive a direct water supply from the irrigation districts. In return, the farm units pay a proportionate share of the cost of the facilities.

After these farm units use the water for irrigation, significant amounts of the water seep through the land and accumulate, either above or below ground, within the project's borders. The parties refer to this water as "waste, seepage or return flow water", abbreviated as "WSRF water".

These WSRF waters are addressed in the contract between the United States Bureau of Reclamation and the local irrigation districts. That contract expressly reserves these waters for use by the project:

The United States does not abandon or relinquish any of the waste, seepage, or return flow waters attributable to the irrigation of the lands to which water is supplied under this contract. All such waters are reserved and intended to be retained for the use and benefit of the United States as a source of supply for the project ...

Amendatory, Supplemental and Replacement Repayment Contracts § 24(a); Supplemental Clerk's Papers, at 107.

Although some of the WSRF water returns to the Columbia River without being used for further irrigation, the project does recapture and reuse a portion of the used water. The irrigation districts enter into "water service contracts" with area landowners granting the landowners the right to divert the previously used water for purposes of further irrigation. These landowners pay a portion of the project's construction and maintenance costs, but a smaller portion than that charged to the landowners who used the water initially. The landowners entering into water service contracts pay for their own costs of capturing and diverting the runoff water.

J.M. Hanson owns farmland within the boundaries of the federal project and he receives water from the project to irrigate portions of his land. In the early 1980's, Hanson became interested in obtaining more water to irrigate an additional 30 acres of his land. Particularly, he wanted to divert water from an unnamed stream flowing across his property.

A significant portion of the water in Hanson's stream is WSRF water from other project lands. The stream originates in a spring that arises from the ground on Hanson's property, approximately 1,500 feet upstream from his proposed point of diversion, which in turn is fed by underground water that has drained off from the irrigation of other farmland in the project.

The stream carries the water across Hanson's land and then, within a mile of his proposed point of diversion empties into the Columbia River. The land downstream from Hanson's is undeveloped and currently has no use for project waters. The project currently has no facilities in place along this stream with which it could recapture this WSRF water, and it currently has no intention of building such facilities in the future.

Because the stream contains WSRF water from the project, Hanson first inquired at his local irrigation district--the Quincy-Columbia Basin Irrigation District--about obtaining a water service contract. According to Hanson, the irrigation district "discouraged" his attempt to obtain water. ²

Hanson then applied to the Department of Ecology in order to obtain his own independent rights of appropriation in the stream. The United States Bureau of Reclamation opposed Hanson's application. The Bureau argued that the WSRF water in Hanson's stream had already been appropriated to the federal government, thereby precluding any further reappropriation.

The Department investigated Hanson's application and the Bureau's objection. It determined that the statutory requirements for granting the permit were met: public surface water was available for appropriation for a beneficial use; the water was to be put to a beneficial use (irrigation); and appropriation would not impair existing rights or be detrimental to the public welfare. See RCW 90.03.290. Accordingly, the Department granted Hanson's permit application.

The Bureau of Reclamation appealed the Department's decision to the Pollution Control Hearings Board. Joining in the appeal were the Quincy-Columbia Irrigation District and two neighboring irrigation districts. ³

The PCHB concluded that the project's WSRF water in Hanson's stream was still subject to the federal government's appropriation rights. Because appropriated water is not public water and it cannot be reappropriated, the PCHB issued a summary judgment reversing the permit's issuance.

The Department appealed to the Grant County Superior Court, ⁴ which reversed the PCHB. The superior court judge ruled that federal rights of appropriation in specific particles of water end when the project is no longer able, willing or intending to beneficially use the water and has lost effective control over it, even if that water is still within the project's physical boundaries. Applying this principle to the present case, the Superior Court concluded that the project's WSRF water is public water available for appropriation when three circumstances concurrently exist:

a) At the proposed point of diversion, the water is bound in its course for immediate departure from the project;

b) The Bureau of Reclamation and irrigation districts have no downstream recapture facilities and no intention to recapture the water; and

c) The proposed location for use of the water is on land ineligible for service by the Bureau or districts.

The court found that the first two circumstances existed, but remanded to the PCHB for factfinding on the third circumstance.

Quincy-Columbia and the other two irrigation districts appealed directly to this court. The Bureau of Reclamation did not join in the appeal.

II

As a general matter, water in this state is publicly owned. See RCW 90.03.010 ("[s]ubject to existing rights all waters within the state belong to the public ..."). Private individuals and organizations, however, may acquire a right to use these public waters. RCW 90.03.010. This is known as a water right or a right of appropriation.

The statute governing water appropriation permits is RCW 90.03.290. Under that statute, the Department must issue a permit if water is "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 ...". If these conditions are not present, however, the Department must deny the application. More specifically, if water has already been appropriated to one entity, it cannot be reappropriated to another. RCW 90.03.290.

The Department's decision to issue water appropriation permits under RCW 90.03.290 is discretionary and will not be reversed "absent a clear showing of abuse". See Schuh v. Department of Ecology, 100 Wash.2d 180, 186, 667 P.2d 64 (1983). A party seeking a reversal under this standard must show that "the discretion was exercised in a manner which was manifestly unreasonable or exercised on untenable grounds or for untenable reasons." Schuh, at 186, 667 P.2d 64. On issues of law, an appellate court may substitute its judgment for that of the agency, but the agency's interpretation of the law is given substantial weight due to the agency's special expertise. Schuh, at 183-84, 667 P.2d 64.

Accordingly, we must decide whether the Department abused its discretion in interpreting RCW 90.03.290. At particular issue is whether the water in Hanson's stream is still subject...