R.D. Merrill Co. v. State, Pollution Control Hearings Bd.
| Decision Date | 07 January 1999 |
| Docket Number | No. 64607-4,64607-4 |
| Citation | 969 P.2d 458,137 Wn.2d 118 |
| Court | Washington Supreme Court |
| Parties | R.D. MERRILL COMPANY, Defendant, v. STATE of Washington, POLLUTION CONTROL HEARINGS BOARD, Respondent. Okanogan Wilderness League ("OWL") and Aaron Burkhart, Appellants, v. State of Washington, Pollution Control Hearings Board, et al., Respondents. |
Sierra Club Legal Defense, Todd True, Yukishisa Ishizuka, John B. Arum, Cutler & Nylander, Ps, Robert G. Nylander, Hillis, Clark, Martin & Peterson, Lynne M. Cohee, Stoel, Rives, Sarah Mack, Seattle, Law Offices of Charles Kimbrough, Charles A. Kimbrough, Bellevue, Foreman & Arch, Michael A. Arch, Wenatchee, for Appellants.
Christine Gregoire, Attorney General, Jean M. Wilkinson, Deborah L. Mull, Asst. Atty Gen., Olympia, for Respondents.
This case presents several issues arising out of R.D. Merrill's applications for changes in water rights as part of R.D. Merrill's efforts to provide water for the Wilson Ranch, a cross-country ski resort. R.D. Merrill sought changes in points of diversion, place of use, and purpose of use. Of the five applications now at issue, we affirm the Pollution Control Board's decision upholding the Department of Ecology's approval of three of the changes sought, 1 affirm the Board's determination that one of the rights was never perfected and therefore cannot be changed, 2 and reverse and remand for further proceedings with respect to the remaining application. 3
We adhere to our recent decision in Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wash.2d 769, 947 P.2d 732 (1997) concerning beneficial use of a water right before a change application may be approved under RCW 90.03.380. We also adhere to our analysis in Rettkowski v. Department of Ecology, 122 Wash.2d 219, 858 P.2d 232 (1993) of the public trust doctrine and its relationship to the state's water codes. We conclude that under certain circumstances a change from seasonal to year-round use is permitted under RCW 90.03.380. We hold that approval of two unperfected groundwater rights was permissible under RCW 90.44.100, which, unlike RCW 90.03.380, does not require beneficial use of the appropriative right obtained under a permit before a change in well location may be approved. We conclude that an asserted water right for irrigation under a 1915 notice of intent to appropriate was never perfected and therefore is not subject to change. Finally, we hold that material issues of fact remain as to abandonment or relinquishment of all or a part of the other irrigation right at issue, and remand for further proceedings.
R.D. Merrill wants to build a resort consisting of a main lodge with dining facilities, 7 dwelling units, 10 lots for cabins, 10 single family lots, and a man-made lake and wetland. The land on which the development is to occur has been the subject of attempts, dating back to the 1970's, by several of R.D. Merrill's predecessors in interest to develop recreational facilities. One earlier proposed development involved a lengthy delay due to litigation involving an environmental review conducted by the United States Forest Service in conjunction with a special permit to develop ski facilities. R.D. Merrill obtained title and development rights in 1992.
In order to build its cross-country ski resort, R.D. Merrill sought to consolidate water rights for irrigation, domestic and stockwatering purposes. The water rights involved in the change applications at issue at this stage of the proceedings are as follows. The Willis irrigation right involves a claim for diverted surface water with a 1910 priority date for stockwatering and irrigation. A 1974 claims registration form indicates 23 acres were irrigated under this right. The Department approved the change application in this amount. However, the Board found that between 1920 and 1930 no more than 14 to 20 acres were irrigated, and accordingly held that the change application could be approved only to the extent of this historical use, i.e., an amount to irrigate up to 20 acres. The Board did not address the extent to which the right was used after that period of time. The Superior Court affirmed.
The Wilson well right is represented by a certificate of water right issued in 1949, the Vane Certificate, for domestic use and stockwatering. Water was supplied under this right to a cabin continuously occupied, except during the winter, from about 1953 to the present. The Department approved a change application in the amount of one acre foot per year. The Board reduced this quantity to .67 acre feet per year to reflect the fact the right had not been used in the winter, and the Superior Court affirmed.
Two of the change applications concern unperfected groundwater permits issued in 1979 for domestic, stockwater and irrigation uses. No beneficial use of water for domestic and stockwatering uses has occurred. The Department approved transfer of these unperfected rights, the Board affirmed, and the Superior Court affirmed.
The final right at issue is the Wilson irrigation right. This asserted right is based upon a 1915 notice of water right describing a diversion of water from the Early Winters Creek. There is no evidence that diversionary works were ever constructed in accord with the notice, and there is conflicting evidence as to whether any water was ever beneficially used under this claimed right. The Department approved the change application. The Board reversed, holding the right had never been perfected and therefore was not subject to change under RCW 90.03.380. The Superior Court reversed.
Change applications under RCW 90.03.380
Okanogan Wilderness League (OWL) makes the same argument in this case that it presented in Okanogan Wilderness League, Inc. v. Twisp, 133 Wash.2d 769, 947 P.2d 732, as to what is required before transfer of a water right may be permitted. Under RCW 90.03.380, the right to use water which has been applied to beneficial use in this state is appurtenant to the land where it is used; however, the right can, without loss of priority, be transferred to another (or others) and become appurtenant to other land or place of use, or a change in point of diversion or the purpose of use can occur, provided in each case that there is no detriment or injury to existing rights. RCW 90.03.380. 4 OWL maintains that the Pollution Control Hearings Board (Board) erred in approving changes in defendant R.D. Merrill's water rights because the Board considered only whether water rights had been historically perfected without regard to the extent to which the water rights had been actually beneficially used at the time of the applications for change.
Historic perfected use is not the measure of a water right subject to change under the statute. Okanogan Wilderness League, Inc., 133 Wash.2d at 777-81, 947 P.2d 732. Moreover, a change application under RCW 90.03.380 is precluded where a perfected right has been abandoned or otherwise extinguished. Id. at 781, 947 P.2d 732. Thus, even if a use was historically perfected, it may have been lost in whole or in part as a result of abandonment or relinquishment. If so, the asserted right (whether in whole or in part) may not be changed or transferred under RCW 90.03.380. Accordingly, issues of abandonment and relinquishment are relevant to the question of beneficial use under RCW 90.03.380.
The amount of water actually beneficially used is also not determined solely with regard to the amount actually applied to beneficial use immediately prior to transfer (or change) requests, and immediate prior use is not the measure of the right which may be transferred or changed. Quantifying a water right for purposes of RCW 90.03.380 based upon beneficial use immediately prior to the time of a transfer or change application could result in an incorrect measure. For example, the amount of water applied to irrigation uses may be considerably higher or lower in a given season or year depending upon, among other things, rainfall, temperature, and recent years' history of drought or rainfall affecting surface and groundwater resources. "Neither the statute nor any authority cited by OWL supports the conclusion that the sole inquiry is whether water has been beneficially used continuously up to the time the change in diversion point is sought." Okanogan Wilderness League, Inc., 133 Wash.2d at 780-81, 947 P.2d 732.
Okanogan Wilderness League, Inc. also resolves an additional claim made by plaintiff Burkhart that the Department improperly conducted a de facto adjudication of the rights to use waters of Early Winters Creek and the Methow River. In order to decide whether to approve a change under RCW 90.03.380, the Department must tentatively determine the existence and extent of the beneficial use of a water right. Okanogan Wilderness League, Inc., 133 Wash.2d at 778-79, 947 P.2d 732. Quantification of the right and whether the right has been relinquished or abandoned in whole or in part are matters the Department must address in deciding whether to approve a transfer or change application. Id.
Seasonal use under RCW 90.03.380
The Vane water right supplied water to a cabin continuously used except in the winter. OWL maintains that under RCW 90.03.380 a transferred right must be limited to the season in which the right has been beneficially used.
Long-settled western water law establishes that a water right is measured not only by quantity, but by time of use. This court gives weight to well-established principles of western water law. Okanogan Wilderness League, Inc., 133 Wash.2d at 783, 947 P.2d 732; Department of Ecology v. Grimes, 121 Wash.2d 459, 475, 852 P.2d 1044 (1993); Department of Ecology v. United States Bureau of Reclamation, 118 Wash.2d 761, 767-69, 827 P.2d 275 (1992).
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