OWENS, J.
¶ 1 In 2003, our legislature made substantial amendments to this state's water law. In 2010, we found those amendments facially constitutional. Today, Scott Cornelius, Palouse Water Conservation Network, and Sierra Club Palouse Group (collectively Cornelius) bring an as-applied constitutional claim (among other claims) against Washington State University (WSU), the Department of
¶ 2 Cornelius and WSU both draw water from the Grande Ronde Aquifer underlying the Palouse Basin. The aquifer is declining from overpumping. WSU has seven groundwater rights that serve its Pullman campus with priority dates ranging from 1934 to 1987. These rights are documented by claims, permits, or certificates depending on when the rights were perfected. Two certificates are primarily at issue in this case: 5070-A and 5072-A. Although the documents for some of WSU's rights state that their purpose was "municipal," the documents for Certificate Nos. 5070-A and 5072-A state their purpose as "domestic." 4 Admin. Record (AR) Doc. 85, at 5 (Order on Summ. J.). The holders of "municipal" water rights are now entitled to added protections under the law. See RCW 90.14.140(2)(d). There was no added protection for "municipal" water rights when Ecology issued Certificate Nos. 5070-A and 5072-A.
¶ 3 Ecology issued Certificate No. 5070-A in 1962 and Certificate No. 5072-A in 1963. When Ecology granted those certificates, it did so on the basis of system capacity rather than beneficial use. Those two certificates, as well as the document representing WSU's other water rights, assigned the water rights to particular wells. However, over the years, WSU has integrated and consolidated its water system, shifting almost all of its groundwater pumping from older wells to two newer wells drawing from the same aquifer. WSU admits Ecology did not previously authorize that integration, and no court has previously adjudicated WSU's water rights. However, after the legislature enacted the municipal water law (MWL) in 2003, LAWS OF 2003, 1st Spec. Sess., ch. 5, WSU applied to Ecology to amend its water right permits and certificates to conform to its actual usage. WSU wanted to legitimize its integrated system, and it sought to amend its certificates to explicitly authorize it to withdraw the aggregate quantity of water represented by all its relevant water rights from the two wells it uses today. Notice of WSU's application appeared in the Moscow-Pullman Daily News as required by statute, and Cornelius timely protested. RCW 90.03.280.
¶ 4 Processing WSU's applications required Ecology to apply a number of common law principles and statutes such as the common law of abandonment, the water code, and the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Ecology also applied the MWL. Ultimately, Ecology approved all but one of WSU's applications.
¶ 5 1. Is the MWL unconstitutional as applied to Cornelius?
¶ 6 2. Did the PCHB err by allowing Ecology to use a streamlined process for evaluating WSU's application?
¶ 7 3. Does RCW 90.44.100 authorize WSU to amend its certificates and add well locations?
¶ 8 4. Did the PCHB correctly apply SEPA?
¶ 9 5. Did the PCHB's summary judgment order improperly preclude Cornelius from presenting evidence about impairment and the public welfare?
¶ 10 6. Did RCW 90.44.130 require Ecology to determine if WSU's proposal would maintain a "safe sustaining yield" of groundwater?
¶ 12 8. Did WSU abandon Claim No. 98523?
¶ 13 9. Did the PCHB err in granting WSU's summary judgment motion regarding beneficial use and reasonable efficiency?
¶ 14 10. Did the water quantities authorized under Permit No. G3-28278P need to be reduced?
¶ 15 11. Is Cornelius entitled to attorney fees?
¶ 16 The Washington Administrative Procedure Act (APA), chapter 34.05 RCW, governs our review of PCHB orders. See RCW 34.05.570(1). We sit in the same position as the superior court and apply the APA to the administrative record. Postema v. Pollution Control Hr'gs. Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000). We will grant relief from an order if we determine that it is based on an unconstitutional statute, an erroneous interpretation or application of the law, or insufficient evidence, among other things. RCW 34.05.570(3)(a), (d), (e). "The burden of demonstrating the invalidity of agency action is on the party asserting invalidity" — Cornelius in this case. RCW 34.05.570(1)(a). We review questions of law and an agency's application of the law to the facts de novo, but we give the agency's interpretation of the law great weight where the statute is within the agency's special expertise. Port of Seattle v. Pollution Control Hr'gs. Bd., 151 Wn.2d 568, 593, 90 P.3d 659 (2004). We will overturn an agency's factual findings only if they are clearly erroneous. Id. at 594, 90 P.3d 659. Finally, many of the PCHB's rulings were made on summary judgment, which we review de novo, making the same inquiry as the PCHB. See Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005).
¶ 17 Cornelius argues that the MWL cannot be applied in this case without violating his due process rights and the separation of powers doctrine. He argues both of these doctrines were violated when Ecology applied the MWL to WSU and approved WSU's groundwater amendment application. Cornelius claims those constitutional doctrines were violated when Ecology and the PCHB "reviv[ed]" WSU's allegedly relinquished groundwater rights. Appellants' Opening Br. at 20.
¶ 18 Before we address Cornelius's as-applied constitutional claims, it is helpful to review Washington's water laws and our recent decision in Lummi Indian Nation v. State, 170 Wn.2d 247, 241 P.3d 1220 (2010), which dealt with the facial constitutional challenge to the MWL underlying the conflict here.
¶ 19 Washington, like other western territories in the late 1800s, followed a water law system called "prior appropriation." Ellis v. Pomeroy Improvement Co., 1 Wn. 572, 578, 21 P. 27 (1889). Prior appropriation is a system of "first in time ... first in right," and our legislature formally recognized that system in 1917. LAWS OF 1917, ch. 117, § 1 (currently codified as RCW 90.03.010). Prior appropriation focuses on the beneficial use of water and generally provides that a person's right to the beneficial use of water is superior to others if he or she first appropriated the water for beneficial use. Id.
¶ 20 Washington still follows the general prior appropriation system but has a regulatory permit scheme to balance and prioritize competing beneficial uses of the state's waters. Put simply and very generally, would-be users submit applications to Ecology and Ecology determines what water is available and to what beneficial use it can be applied before issuing permits. Lummi Indian Nation, 170 Wash.2d at 252-53, 241 P.3d 1220; RCW 90.03.290(1). Permits represent inchoate water rights, which are not choate (i.e., vested) until perfected. Lummi Indian Nation, 170 Wash.2d at 253, 241 P.3d 1220; RCW 90.03.330. Before the right is perfected, the applicant still has an incomplete appropriative
¶ 21 Ecology and its predecessor have applied the perfection doctrine inconsistently over the years. Lummi Indian Nation, 170 Wash.2d at 254-55, 241 P.3d 1220. Initially, water users needed to both appropriate water and put it to beneficial use before they could perfect their right. See, e.g., Ortel v. Stone, 119 Wn. 500, 503, 205 P. 1055 (1922). However, in the 1950s, Ecology and its predecessor issued both permits and certificates based on a user's need and capacity rather than on its actual beneficial use; this different approach was aptly named "`pumps and pipes.'" Dep't. of Ecology v. Theodoratus, 135 Wn.2d 582, 587, 957 P.2d 1241 (1998). Tension arose because of this inconsistency, and it led to our decision in Theodoratus.
¶ 22 George Theodoratus had a water right application approved by Ecology for a development he planned to build. Id. Ecology's "Report of Examination" approving his application had language purporting to create a vested water right based on his development's capacity for water so long as it was built by a particular date. Id. Under the original report, Theodoratus would have been entitled to a certificate and his rights would have thus vested once he completed his water supply system and it was capable of delivering water — regardless of actual beneficial use. Id. Theodoratus was delayed in completing the development, and Ecology granted him several permit extensions, the last of which placed conditions on his water rights vesting. Id. at 587-88, 957 P.2d 1241. The conditions provided, among other things, that his vested water right would be determined based on actual application of water to beneficial use, not on system capacity. Id. at 588, 957 P.2d 1241. Theodoratus appealed Ecology's condition, and we eventually held that the relevant statutes and our common law left no doubt that Theodoratus's vested water rights must be based on beneficial use — not system capacity. Id. at 590, 957 P.2d 1241. We noted, however, that our decision did not involve "municipal water suppliers," which are treated differently under our "statutory scheme." Id. at 594, 957 P.2d 1241.
¶ 23 Specifically, since 1967, our statutory scheme has treated water rights claimed for municipal water supply purposes as immune from statutory relinquishment, while non-municipal water rights may be relinquished through nonuse. LAWS OF 1967, ch. 233, § 18 (codified as RCW 90.14.180); cf. LAWS OF 1967, ch. 233, § 14 (codified as RCW 90.14.140(2)(d)). Generally, a nonmunicipal water right holder relinquishes all or part of its right if it fails to beneficially use the water right for five successive years without sufficient cause. RCW 90.14.180; see RCW 90.14.140(2)(d). However, despite this favorable treatment, until recently, our laws did not define "municipal water supplier" or "municipal water supply purposes."
¶ 24 This ambiguity in the water code, combined with our Theodoratus decision, caused water users concern about the validity of their water rights based on system capacity and whether their water rights were subject to relinquishment. In response, our legislature amended the water law act. Lummi Indian Nation, 170 Wash.2d at 256, 241 P.3d 1220; LAWS OF 2003, 1st Spec. Sess., ch. 5; SECOND ENGROSSED SECOND SUBSTITUTE H.B. 1338, 58th Leg., 1st Spec. Sess. (Wash.2003) (2E2SHB 1338). In addition to defining "municipal water supplier" and "municipal water supply purposes" for the first time, the law declared that water right certificates issued prior to September 9, 2003, for municipal water supply purposes based on system capacity were in good standing. Lummi Indian Nation, 170 Wash.2d at 256-57, 241 P.3d 1220 (citing LAWS OF 2003, 1st Spec. Sess., ch. 5; 2E2SHB 1338; H.B. REP. ON 2E2SHB 1338,
¶ 25 The amendments garnered opposition from various groups and ultimately led to our Lummi Indian Nation decision. In that case, two groups of challengers (including Cornelius) brought facial constitutional challenges, arguing that the amendments, specifically RCW 90.03.015(3) and (4) and RCW 90.03.330(3), violated separation of powers and due process. Id. at 259, 265, 241 P.3d 1220. The challengers argued the amendments violated separation of powers by changing the requirements we noted in Theodoratus for private water rights to vest and thereby unsettling our decision. Id. at 259-60, 241 P.3d 1220. As discussed further below, we found no separation of powers violation because the legislature did not "apply the law to an existing set of facts, affect the rights of parties to the court's judgment, ... interfere with any judicial function," or adjudicate facts. Id. at 263, 241 P.3d 1220. The challengers argued that the amendments violated due process by potentially depriving junior water users of vested rights by "`resurrecting'" the relinquished water rights of potentially senior rights holders. Id. at 268-69, 241 P.3d 1220. Again, as discussed further below, we found that the amendments by themselves did not resurrect any relinquished rights and did not deprive junior water rights holders of vested property rights. Id. We left "for another day consideration of any as-applied challenges." Id. at 263, 241 P.3d 1220. Today is that day.
¶ 26 The doctrine of separation of powers "`preserves the constitutional division between the three branches of government'" and ensures that the activities of one branch do not "`threaten or invade the prerogatives of another.'" In re Estate of Hambleton, 181 Wn.2d 802, 817, 335 P.3d 398 (2014) (quoting State v. Elmore, 154 Wn.App. 885, 905, 228 P.3d 760 (2010)); Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975). The legislature violates separation of powers when it applies "the law to an existing set of facts, affect[s] the rights of parties to the court's judgment, ... interfere[s] with any judicial function," or adjudicates facts. Lummi Indian Nation, 170 Wash.2d at 263, 241 P.3d 1220. The legislature is occasionally disappointed with our interpretation of a statute, and it may amend statutes within its sphere of authority and may sometimes apply the amended statute retroactively; however, the legislature may not retroactively reverse decisions of this court or interfere with any judicial functions. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 509-10, 198 P.3d 1021 (2009). "[W]hen the legislature passes a statute premised on finding an adjudicative fact" or if it interferes with someone's previously litigated vested rights, "it may violate separation of powers." Lummi Indian Nation, 170 Wash.2d at 264-65, 241 P.3d 1220.
¶ 27 Cornelius first claims that by adjudicating facts, the PCHB interpreted the MWL in the manner we stated in Lummi Indian Nation would violate the separation of powers doctrine. In that case, we were careful not to prejudge whether water rights holders could bring a successful as-applied challenge if their previously adjudicated water rights were sufficiently affected by the MWL. See id. at 265, 241 P.3d 1220. But Cornelius's as-applied challenge is a thinly veiled facial challenge, and it fails.
¶ 28 Cornelius argues that when the PCHB applied the MWL in this case, it changed the past status of WSU's water rights — rights that had already been relinquished by operation of law though not yet memorialized by Ecology or in a court opinion. He claims that because WSU's two certificates were not issued specifically for "municipal water supply purposes," WSU's failure to use the water for more than five years prior to 2003 relinquished WSU's water rights. Appellants' Opening Br. at 22-24. And because, he contends, WSU's rights were relinquished through nonuse, the
¶ 29 We disagree. Retroactive application of a statute does not necessarily violate separation of powers — there must be some interference either with vested rights or with the prerogatives of another branch of government. Hale, 165 Wash.2d at 507-10, 198 P.3d 1021; Lummi Indian Nation, 170 Wash.2d at 262, 241 P.3d 1220. In Lummi Indian Nation, we already held that retroactively applying the MWL does not violate the constitution — including RCW 90.03.560, the amendment that allows for water rights to be relabeled using the new definition of "municipal water supply purposes." 170 Wash.2d at 260-63, 272, 241 P.3d 1220. We found that allowing this statute to apply retroactively is a legislative policy decision — confirming existing rights — not a factual adjudication. Id. at 264-65, 241 P.3d 1220. Although we stated that retroactive application of this statute could unconstitutionally disturb previously litigated adjudicative facts, we must be faced with previously litigated adjudicative facts in order to find an as-applied constitutional violation.
¶ 30 Here, there are no previously litigated adjudicative facts regarding WSU's past water rights. Accordingly, there is no way that the PCHB violated the separation of powers doctrine by applying the MWL to WSU's certificates — there were no "adjudicative facts" the PCHB could have upset. Id. at 265, 241 P.3d 1220. The PCHB merely applied the MWL definition to WSU in the current adjudication. That is the precise general application of the MWL we found constitutional in Lummi Indian Nation. Id. at 260-63, 272, 241 P.3d 1220.
¶ 31 Cornelius would have us overrule Lummi Indian Nation in all but name. Cornelius would have us rule that the purpose of use stated on water right certificates must control — that only certificates stating a "municipal" purpose can be treated as municipal. That holding would invalidate RCW 90.03.560 on its face and overrule Lummi Indian Nation, where we held that the new definition of "municipal water supply purposes" applies retroactively, even to rights that were not originally labeled "municipal." Id. at 268-69, 241 P.3d 1220.
¶ 32 RCW 90.03.560 demonstrates that the legislature foresaw that too much weight might be placed on the characterizations of water rights holders and water rights use on certificates issued before "municipal" was defined. The legislature created a mechanism to fix this problem. The statute states in relevant part:
RCW 90.03.560 (emphasis added). Thus, the legislature recognized that some water rights had been issued for municipal purposes under nonmunicipal labels and provided a simple mechanism to fix that problem. And as we held in Lummi Indian Nation, allowing this statute to apply retroactively is a legislative policy decision — confirming existing rights — not a factual adjudication. 170 Wash.2d at 264-65, 241 P.3d 1220.
¶ 33 This case exemplifies the labeling problem the legislature sought to resolve in passing RCW 90.03.560. When the relevant certificates were issued in 1962 and 1963, Ecology did not have a reason to be precise about distinguishing "municipal" and domestic uses because "municipal water supply purposes" was undefined and the legislature did not give municipal suppliers an exemption from relinquishment until 1967. See id. at 255-56, 241 P.3d 1220; LAWS OF 1967, ch. 233, § 14 (currently codified as RCW 90.14.140). Thus, Ecology could have issued domestic supply certificates to entities that were functionally municipal and vice versa.
¶ 35 Cornelius next claims that the PCHB violated his due process rights as a junior water user when it "revive[d]" WSU's relinquished senior water rights. Appellants' Opening Br. at 20. He argues the revival moved him "further down the line" of water rights. Id. Again, Cornelius's as-applied challenge is a thinly veiled facial challenge and fails.
¶ 36 Cornelius again cites to Lummi Indian Nation to support his argument. He claims we held in that case that the MWL did not resurrect rights already lost and that when water right applicants apply to amend their certificates, Ecology is required to determine which water rights have been relinquished pursuant to RCW 90.03.330(2) and RCW 90.44.100. Thus, he argues that here, Ecology unconstitutionally applied the MWL to WSU's water rights because it resurrected a relinquished water right.
¶ 37 We disposed of this argument in Lummi Indian Nation. We held in Lummi Indian Nation that merely relabeling a previously granted water right as "municipal" does not violate due process, provided the water user falls under the new municipal definition. See 170 Wash.2d at 265-67, 241 P.3d 1220. We stated,
Id. at 266-67, 241 P.3d 1220. Here, Ecology merely applied RCW 90.03.560 and RCW 90.03.015 retroactively to WSU to determine that WSU's water rights were valid and met the definition of "municipal water supply purposes." 4 AR Doc. 85, at 14-15 (Order on Summ. J.). This is precisely the kind of action we found constitutional in Lummi Indian Nation. If we ruled for Cornelius, Ecology would regularly violate a junior water right holder's due process rights when it applied RCW 90.03.560 to amend a senior municipal holder's water right, the precise argument we rejected in Lummi Indian Nation.
¶ 38 While there may be an unconstitutional application of the MWL, we
¶ 39 Cornelius next argues that the PCHB erred in approving Ecology's streamlined process for evaluating WSU's application. Specifically, he claims that the streamlined process conflicts with the MWL's requirement that when a person applies to amend his or her water right, Ecology must conduct a tentative determination of the extent and validity of the water right. He concludes from that requirement that the streamlined process is ultra vires because it contradicts our water laws. His claim suffers from the same erroneous characterization of the MWL we outlined above and fails.
¶ 40 An agency's policy is ultra vires if it exceeds its statutory authority. S. Tacoma Way, LLC v. State, 169 Wn.2d 118, 122-23, 233 P.3d 871 (2010). The parties agree that when someone applies to amend their certificates or change the manner or place of use of the water, Ecology must conduct a tentative determination of the extent and validity of the applicant's water rights pursuant to RCW 90.44.100. We accept their agreement for the limited purposes of deciding the issue presented. Tentative determinations generally include Ecology staff examining an applicant's historic water use, often looking at year-to-year use, to determine if the applicant relinquished rights. However, Ecology has a streamlined policy for making "simplified" tentative determinations when relinquishment is not an issue. 2 AR Doc. 23, Ex. 2, at 3 (Decl. of Patrick Kevin Brown in Supp. of WSU's Mot. for Partial Summ. J.). Under this streamlined policy, Ecology's staff does not generally require applicants to demonstrate their year-to-year water use because relinquishment is not an issue. Intuitively, instances where Ecology permits the streamlined policy would include when the water right is for a municipal water supply under RCW 90.03.330(3), since those rights are immune from relinquishment. RCW 90.14.140(2)(d).
¶ 41 Here, Ecology made a simplified tentative determination of some of WSU's water rights, which Cornelius challenges, arguing that the MWL still required Ecology to look at WSU's historic nonuse of its water rights and revoke any relinquished rights.
¶ 42 Accepting Cornelius's argument would require us to ignore RCW 90.03.560 and our holding in Lummi Indian Nation. Here, Ecology appropriately applied RCW 90.03.560 and RCW 90.03.015 retroactively to WSU to determine that WSU's water rights were valid and met the definition of "municipal water supply purposes." 4 AR Doc. 85, at 14-15 (Order on Summ. J.). Ecology applying the streamlined policy to WSU is consistent with the MWL because WSU's water rights were for municipal water supply purposes and immune from relinquishment. Accordingly, Ecology's action was not ultra vires and Cornelius's claim fails.
¶ 43 Cornelius next challenges the PCHB's summary judgment order allowing WSU to amend its certificates to add well locations under RCW 90.44.100. He argues that under our decision in R.D. Merrill Co. v. Pollution Control Hearings Bd., 137 Wn.2d 118, 969 P.2d 458 (1999), in order to amend a
¶ 44 RCW 90.44.100 authorizes individuals to apply to amend their permits or certificates to add well locations. RCW 90.44.100(1). In R.D. Merrill, we said that because RCW 90.44.100 includes the word "permit," it expressly does not require applicants to perfect their water rights through beneficial use before they can amend a groundwater permit. 137 Wash.2d at 130, 969 P.2d 458. That case did not involve certificates or water rights for municipal supply purposes. See id.
¶ 45 The plain language of RCW 90.44.100 and the logic of our decision in R.D. Merrill, combined with the operation of the MWL, allows water users who possess unperfected water rights documented by certificates to amend them to add well locations, at least where the certificates were originally based on system capacity and were for municipal supply purposes. RCW 90.44.100 itself does not require certificate holders to perfect any unperfected rights before amending them to add well locations. In R.D. Merrill, we allowed permit holders to amend their unperfected rights specifically because the statute mentioned "permit" and thus contemplated that permit holders need not have beneficially used water. 137 Wash.2d at 130, 969 P.2d 458. Although we hinted that in the certificate-holder context, water would likely need to be put to beneficial use before it could be amended under RCW 90.44.100, it was because certificates issue only once water has been put to beneficial use — not because RCW 90.44.100 requires it. Id. at 133, 969 P.2d 458. In other words, in many cases, certificate holders would need to put their water rights to beneficial use because if they failed to do so, Ecology could find those rights relinquished under RCW 90.44.100 once the applicant applied to amend. See id. at 133 n. 7, 969 P.2d 458. But, in scenarios involving system capacity certificates for municipal supply purposes, relinquishment is simply not an issue. System capacity certificates for municipal supply purposes represent rights "in good standing," i.e., the water rights are deemed perfected, even if the rights were not actually put to beneficial use. RCW 90.03.330(3).
¶ 46 As discussed above, WSU's water rights are represented by system capacity certificates for municipal supply purposes. Thus, WSU did not need to take any action to fully perfect its rights before amending them under RCW 90.44.100 because they are deemed perfected. Accordingly, Cornelius's claim fails.
¶ 47 Cornelius next argues that Ecology failed to comply with SEPA when it processed WSU's applications. The PCHB granted Ecology's summary judgment motion on this issue, and Cornelius appeals, arguing that Ecology should have supplemented its SEPA review. His claim fails.
¶ 48 SEPA is a procedural law that ensures state agencies, among others, consider environmental impacts and alternatives before taking certain actions. Save Our Rural Env't. v. Snohomish County, 99 Wn.2d 363, 371, 662 P.2d 816 (1983). If no categorical exemption from SEPA exists, the relevant agency or actor proposing a development must meet certain environmental review and documentation requirements. WAC 197-11-310. First, applicants must prepare an "environmental checklist" to describe basic information about a proposal's environmental impacts. WAC 197-11-960. The responsible agency
¶ 49 Here, WSU was the lead agency, and it prepared an environmental checklist and issued a DNS. The checklist and DNS did not address whether WSU, by integrating its water system, would increase groundwater withdrawals and exacerbate the declining water level in the aquifer. When Ecology processed WSU's application, it relied on WSU's DNS without adding a supplemental EIS or preparing a new determination. Cornelius argues that when Ecology allowed WSU to amend and integrate its water system, it expanded WSU's water rights, allowing it to pump more groundwater than legally allowed. He claims Ecology was thus obligated under SEPA to supplement WSU's DNS based on the "`new information'" of WSU's increased pumping capacity and its impact on the aquifer. Appellants' Opening Br. at 33.
¶ 50 Cornelius's argument is unpersuasive. As we stated above, Ecology and the PCHB did not expand WSU's water rights in approving WSU's application; rather, they confirmed WSU's rights by applying RCW 90.03.560. The PCHB correctly noted that the amendment does not allow WSU to pump any more water than it currently has a vested right to pump — it merely allows WSU to more cost effectively utilize its existing rights. Thus, Ecology did not need to supplement WSU's DNS because there was no "new information." Accordingly, we affirm the PCHB's summary judgment order on this issue.
¶ 51 Cornelius next argues that through its "unconstitutional interpretation of the MWL," the PCHB improperly limited the evidence and argument that would, he contends, have shown that amending WSU's water rights certificates would impair existing rights and be detrimental to the public welfare. Id. at 34. Cornelius's claim is meritless because it is predicated on the same flawed argument that WSU's water rights are being expanded under the MWL that we rejected above. Properly understood, the PCHB did not expand or revive relinquished water rights; rather, it confirmed WSU's existing water rights. Accordingly, Cornelius's claim fails.
¶ 52 Cornelius next argues that when WSU applied to amend its water rights certificates, RCW 90.44.130 required Ecology to determine if WSU's proposal would maintain a safe sustaining yield of groundwater. Id. at 35. Cornelius's claim again fails.
¶ 53 Generally, RCW 90.44.130 protects "prior appropriator[s]," i.e., senior water users, from subsequent appropriators overdrafting public groundwater. The statute protects senior users by giving Ecology the power to limit subsequent appropriators' withdrawals to an amount that will "maintain and provide a safe sustaining yield in the amount of the prior appropriation." RCW 90.44.130.
¶ 54 Here, Ecology did not apply the safe sustaining yield provision to WSU and interpreted the statute to mean that the safe sustaining yield requirement applies only to new applications for water rights, not to applications to amend existing water rights certificates. The PCHB agreed with Ecology's interpretation. Cornelius argues Ecology's interpretation was erroneous for two reasons. First, he contends Ecology's erroneous interpretation steins from its unconstitutional interpretation
¶ 55 Although RCW 90.44.130 clearly protects senior water users against overdrafting by subsequent users, it is unclear whether the senior users' enjoyment of a "safe sustaining yield" applies only to new users who wish to appropriate water or if it applies to existing users who seek to amend. However, here, that is an academic question. WSU is the senior water user, not Cornelius. Thus, Ecology and the PCHB did not err by not applying the safe sustaining yield provision to WSU.
¶ 56 Cornelius again challenges the formally inchoate portions of several of WSU's water rights, this time arguing that they are invalid because they were not put to beneficial use with "reasonable diligence." Appellants' Opening Br. at 37. Cornelius's claim again fails.
¶ 57 When individuals apply to amend their water rights certificates under RCW 90.44.100, rights represented by system capacity certificates for municipal supply purposes are rights "in good standing," i.e., the rights are deemed perfected, even if they were not actually put to beneficial use. RCW 90.03.330(3). However, although the water need not actually have been put to beneficial use for the rights to remain in good standing, the water rights must still be "prosecuted with reasonable diligence" to remain valid. RCW 90.03.460. What constitutes reasonable diligence depends on the circumstances, including the magnitude of the project, the engineering and physical features to be encountered, and public interests. RCW 90.03.320. Another circumstance relevant in the municipal supply purposes context is "delays that may result from planned and existing conservation and water use efficiency measures." Id. One of the purposes of the reasonable diligence requirement is to avoid a party speculating in water rights (i.e., acquiring water rights for future profit rather than specifically intending to apply them to a beneficial use). See R.D. Merrill, 137 Wash.2d at 130-31, 969 P.2d 458.
¶ 58 Here, four of WSU's water rights are at issue, represented by Certificate Nos. 5070-A, 5072-A, and G3-22065C, and Permit No. G3-28278P. WSU has not historically used the quantity of water listed on those certificates and the one permit since the priority dates of those water rights — 1962, 1963, 1973, and 1987 respectively. Thus, WSU has not put to beneficial use the full extent of those water rights for several decades. There is no evidence that WSU is speculating its water rights for profit; WSU exclusively exercises its rights to serve its Pullman campus. Over those decades, WSU has developed as an institution, increasing its enrollment and developing additional facilities. Even with this growth, in recent years WSU's water use has actually declined because it has taken water conservation measures.
¶ 59 Here, we find WSU has exercised reasonable diligence. Although in other circumstances failing to use the full extent of one's water rights for decades might not meet the reasonable diligence requirement, here WSU meets the requirement because of its unique situation and development throughout the decades. WSU is a large public institution that has developed new facilities and increased enrollment over the years. It is in the unusual position of being unable to predict or plan its own growth because its budget and enrollment targets are largely controlled by the legislature. Additionally, WSU is not speculating its water rights, and it has not exercised the full extent of its rights at least in part because of water conservation measures. Considering these circumstances, taking away WSU's water rights for lack of reasonable diligence would hinder WSU's ability to educate students, and it would essentially punish WSU for taking water conservation measures. Accordingly, WSU exercised reasonable diligence and Cornelius's claim fails.
¶ 60 Cornelius next argues that WSU abandoned its water right represented by Claim No. 98523. His claim fails.
¶ 61 "Abandonment is the intentional relinquishment of a water right." Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wn.2d 769, 781, 947 P.2d 732 (1997). Abandonment requires a two-part showing: nonuse plus an intent to abandon the water right. See id. The party alleging abandonment has the burden of proof. Id. However, "long periods of nonuse raise a rebuttable presumption of intent to abandon" a water right, and the burden shifts to the water right holder to give reasons justifying the nonuse. Id.
¶ 62 Here, WSU filed Claim No. 98523 in 1974, and the claim identifies WSU's Well No. 2 as the source or point of withdrawal. The water right represented by this claim has a priority date of 1938, which is also the year Well No. 2 was drilled. WSU stopped using Well No. 2 as a water source in 1978 because of a misaligned hole and low water level, and WSU decommissioned the well in 1995, using it as a monitoring well instead. WSU's 2002 Water System Plan formally denoted Well No. 2 as being abandoned. However, WSU's 2002 Water System Plan also identified Claim No. 98523 as an existing water right, listing quantities of water for its current and forecasted water right tables. When WSU prepared its applications to amend its water rights, the responsible employee corresponded with Ecology, and the employee assumed that WSU's abandonment of Well No. 2 meant that WSU had abandoned the water right itself. Ecology informed the employee that when a person abandons a well, he or she does not necessarily abandon the associated water right.
¶ 63 Cornelius argues he demonstrated a long period of nonuse because WSU ceased using Well No. 2 in the late 1970s, and he says that unauthorized pumping from other wells cannot make up for WSU not using Well No. 2. He argues WSU cannot rebut the presumption of an intent to abandon Claim No. 98523 because WSU listed Well No. 2 as abandoned and WSU (through its agent employee) assumed Claim No. 98523 was abandoned.
¶ 64 Assuming without deciding that Cornelius demonstrated a long period of nonuse, WSU demonstrated that it did not intend to abandon Claim No. 98523. Cornelius's argument heavily relies on Okanogan Wilderness League, In that case, the town of Twisp had a water right dating back to 1912 to divert water from the Twisp River. Id. at 772, 947 P.2d 732. At least since 1948, Twisp stopped diverting from the river and instead drew water from wells in the town. Id. When Twisp belatedly applied for groundwater certificates for the wells in 1967 and 1971, "it did not mention the 1912 water right even though the application forms asked whether there were any other water rights appurtenant to the lands served by the groundwater withdrawals." Id. at 783, 947 P.2d 732. In the 1990s, Twisp applied to Ecology for a new water right and an Ecology employee discovered a certificate for the 1912 right. Id. at 773, 947 P.2d 732. Twisp then sought to use the discovered 1912 right to withdraw water from two new wells. Id. The only evidence Twisp had that it did not abandon the 1912 water right was Twisp's continuing existence and need for a water supply. Id. at 784, 947 P.2d 732. We found Twisp's showing inadequate and held that Twisp abandoned the 1912 right. Id. at 786, 947 P.2d 732.
¶ 65 Here, WSU shows it did not intend to abandon Claim No. 98523. Unlike Twisp in Okanogan Wilderness League, where Twisp apparently forgot it had the 1912 right and failed to list the right on subsequent applications, here WSU never forgot about Claim No. 98523. Although WSU listed the claim's associated well as abandoned in 2002, it also stated that the water right represented by the claim existed, listing quantities of water for its current and forecasted water right status tables. The record indicates WSU's employee's mistake about Claim No. 98523 being abandoned was a theoretical concern he had while preparing WSU's applications to amend its water rights, not a demonstration of an intent to abandon the claim. Accordingly, WSU did not abandon Claim No. 98523 and Cornelius's claim fails.
¶ 66 Cornelius next argues that the PCHB erred in granting WSU's summary judgment motion on whether WSU's irrigation of its golf course complied with beneficial use requirements. We disagree.
¶ 67 In water law, "beneficial use" encompasses two principles. In re Rights of Surface & Ground Waters of Marshall Lake & Marshall Creek Drainage Basin, 121 Wn.2d 459, 468, 852 P.2d 1044 (1993). First, "beneficial use" refers to the types of activities for which water may be used (e.g., irrigation or agriculture). Id. Second, "beneficial use" determines the measure of a person's water right (i.e., a person is entitled to the amount of water he or she has traditionally put to beneficial use). Id. Closely related to the idea of beneficial use is an appropriator's duty to avoid waste — when someone appropriates water to beneficial use, that appropriation must be reasonably (not absolutely) efficient. Id. at 472, 852 P.2d 1044. Whether a beneficial use is reasonably efficient turns on a variety of factors, such as local custom, the relative efficiency of irrigation systems in common use, and the costs and benefits of improvements to irrigation systems. Id. at 475, 852 P.2d 1044.
¶ 68 Here, Cornelius originally alleged that WSU's irrigation of its golf course did not meet the reasonable efficiency requirement for beneficial use. WSU moved for summary judgment, and to defeat WSU's summary judgment motion, Scott Cornelius submitted a declaration describing personal observations he made of WSU's golf course while driving or bicycling past it, including photographs and temperature data. In his declaration, Scott Cornelius says he saw, among other things, sprinklers operating during the day when local temperatures were in the 90s and water runoff on hillsides adjacent to the golf course. The PCHB granted WSU's summary judgment motion, saying that Scott Cornelius's personal observations could not meet his burden of showing a triable issue of fact regarding reasonable efficiency according to the relevant legal factors in Rights of Surface & Ground Waters. Additionally, the PCHB stated that Scott Cornelius's "allegations may be more properly evaluated in the context of an enforcement action." 4 AR Doc. 85, at 28 (Order on Summ. J.). Cornelius now argues that the PCHB erred by (1) applying the wrong summary judgment standard by ruling that expert testimony was required to defeat summary judgment and (2) ruling that Ecology lacks the authority to evaluate reasonable efficiency when it reviews groundwater amendment applications (i.e., that reasonable efficiency can be reviewed only in an enforcement action).
¶ 69 Cornelius's arguments fail. First, the PCHB did not rule that expert testimony was required to defeat summary judgment. Rather, it said that "the observations of Scott Cornelius, who is admittedly not an expert in this area, along with the photographs and temperature data, fail to establish a genuine dispute about the reasonable efficiency of WSU's water use." Id. The PCHB properly found Scott Cornelius's observations insufficient to show triable questions of fact regarding reasonable efficiency according to the relevant legal factors in Rights of Surface & Ground Waters. Scott Cornelius's personal observations about the sprinklers tell us nothing about local custom, the relative efficiency of commonly used irrigation systems, or costs and benefits associated with improvements to irrigation systems — the relevant legal inquiries under Rights of Surface & Ground Waters. At best, Scott Cornelius's evidence establishes that WSU's sprinkler system is not absolutely efficient, which is not required for reasonable efficiency. Accordingly, his challenge fails.
¶ 70 Second, the PCHB did not rule that Ecology lacked the authority to evaluate reasonable efficiency when it reviews groundwater amendment applications. The PCHB merely stated that it thought Scott Cornelius's "allegations may be more properly evaluated in the context of an enforcement action," not that Ecology lacked the authority to evaluate reasonable efficiency. Id. Thus, Cornelius's second argument is based on a misunderstanding of the PCHB's summary judgment order. Accordingly, Cornelius's claims fail.
¶ 71 Cornelius next argues that the PCHB erred when it ruled after a hearing that Ecology was not required to reduce the water quantity authorized under Permit No. G3-28278P. Cornelius claims that because Permit No. G3-28278P is supplemental to Claim No. 098524 (which Ecology found invalid), Ecology should have subtracted the water quantity associated with Claim No. 098524 from Permit No. G3-28278P. We disagree.
¶ 72 The groundwater code contains a prohibition on enlargement of rights. See RCW 90.44.100(2)(c). It prohibits Ecology from authorizing additional wells as points of withdrawal if the combined total withdrawal from the original and additional well enlarges the rights conveyed by the original permit or certificate. Id. We will grant relief from an agency order resulting from an adjudicative proceeding if the order is not supported by substantial evidence. RCW 34.05.570(3)(e). "[S]ubstantial evidence is `a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.'" King County v. Cent. Puget Sound Growth Mgmt. Hr'gs. Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000) (quoting Callecod v. Wash. State Patrol 84 Wn.App. 663, 673, 929 P.2d 510 (1997)).
¶ 73 Here, Ecology issued a report of examination (ROE) regarding Permit No. G3-28278P, informing WSU that the permit is "for supplemental water only" and that the "waters to be appropriated from Well No. 7 will serve to replace, as necessary, those waters originally authorized or claimed for appropriation from Wells No. 1, 3 and 4." Ex. A-26, at 3. In other words, Ecology granted the permit to supplement the water WSU was already authorized to appropriate under its primary water rights. The permit itself contains the following language:
Ex. A-25, at 2. The PCHB conducted a hearing to determine whether Ecology meant "supplemental" to mean that the water right represented by Permit No. G3-28278P was valid only to the extent that the primary (older) water rights were valid, or whether "supplemental" meant that the permit was an alternate way for WSU to appropriate its previously authorized rights. 4 AR Doc. 89, at 30-31 (Findings of Fact, Conclusions of Law & Order). After examining the language in the permit and the ROE, the PCHB determined that Permit No. G3-28278P was intended as an alternate source of water for WSU and that the amount of water authorized under the permit was not legally dependent on WSU's existing water claims. Thus, the PCHB did not require WSU to subtract the amount of water authorized in invalid Claim No. 098524 from Permit No. G3-28278P because the permit merely represented an alternate source of water for WSU. Cornelius claims the PCHB erred, arguing that the permit's validity depends on the preexisting water rights' validity.
¶ 74 Cornelius contends that the permit's language and its status as "supplemental" necessarily means that the permit's validity depends on the preexisting water rights' validity. We find that the evidence the PCHB relied on — the language of the permit itself — is sufficient to persuade a fair-minded person of the truth or correctness of the finding. Accordingly, the PCHB's finding is supported by substantial evidence and Cornelius's claim fails.
¶ 75 Cornelius requests attorney fees pursuant to RCW 4.84.350. That statute allows for attorney fees when a qualified party prevails in judicial review of an agency action. Here, Cornelius does not prevail. Thus, we deny the request for attorney fees.
¶ 76 The legislature substantially amended this state's water law in 2003, categorizing water uses and deciding which categories would be relinquished through nonuse. In
WE CONCUR: C. JOHNSON, FAIRHURST, STEPHENS, GONZÁLEZ, JJ., and J.M. JOHNSON, J.P.T.
MADSEN, C.J. (dissenting).
¶ 77 It is well settled Western water law, as well as the law of this state, that municipal uses were not the same as domestic and community domestic and stock water uses under Washington law prior to the 2003 amendment of our state water laws, and a water right granted in the early 1960s for domestic and community domestic and stock water uses was not a right to put water to municipal use. Recognizing the rising demand for water and the scarcity
¶ 78 Rather than properly applying the relinquishment statutes to the water rights at issue here, the majority instead applies the 2003 laws governing municipal water uses to recharacterize domestic uses to mean municipal uses and thus defeat statutory relinquishment. This application of the 2003 amendment conflicts with relinquishment statutes and fails to recognize the important policy decisions underlying these statutes.
¶ 79 Consistent with our prior decision in Lummi Indian Nation v. State, 170 Wn.2d 247, 241 P.3d 1220 (2010), I would hold that the relinquished rights in question cannot be resurrected. In holding otherwise, the majority fails to give effect to the relinquishment statute, misapplies the 2003 amendments, and unsettles legitimate expectations of water users in an already overappropriated water system.
¶ 80 In Lummi Indian Nation, we held that legislation enacted in 2003 governing municipal water supplies and suppliers was not facially unconstitutional. However, we recognized that as-applied constitutional claims might prevail if vested rights were affected by application of the 2003 amendments. This is the as-applied challenge we anticipated in Lummi.
¶ 81 The appellants here
¶ 82 I would reverse and remand this case to the Washington Pollution Control Hearings Board (Board) for reconsideration of appellants' claims of statutory relinquishment, with directions that the 2003 legislation cannot be applied to change the character of the water rights granted for domestic and community domestic and stock water uses to preserve water rights lost for failing to put the water to beneficial use.
¶ 83 In 2004, WSU applied to the Washington Department of Ecology for changes to all of its existing water rights that WSU holds to provide water to its primary campus. WSU is the state's land grant institution of higher education, with its primary campus located within the limits of the city of Pullman, Washington. WSU operates its own water system that serves the campus. All of the water that is supplied is withdrawn from WSU's wells, except for an emergency intertie with the city of Pullman.
¶ 84 WSU's applications in effect sought to permit water authorized under any of its water rights to be withdrawn from any of its wells. The goal was to bring the university's water rights into conformance with the infact consolidation of these rights that had occurred over time. Between 1935 and 1983, WSU was issued four water rights and it registered three claims for groundwater rights obtained prior to enactment of the groundwater code in 1945. WSU has drilled and operated eight wells. Eventually, WSU was pumping water from the wells into one integrated water system divided into two distribution zones. Also, as time has passed, WSU has consolidated its well operations, shifting pumping away from older wells as it brought new wells online. WSU never obtained authorization to use its water rights in an integrated system, and the university's withdrawal of water from each of the individual wells has not matched the quantity of water authorized to be withdrawn from the well, either historically or at present. In recent years, WSU has withdrawn water through only three of its wells: Wells 6, 7, and 8.
¶ 85 In the early 2000's, Gary Wells, an engineer in WSU's facilities operations division, began working on a water rights change proposal because WSU's system was aging and largely dependent on one well, Well 7. Wells was concerned about being able to provide sufficient water for the campus if Well 7 became inoperable.
¶ 86 WSU provided notice of its applications to change its water rights, and Scott Cornelius and the Palouse Water Conservation Network objected to the change requests. In 2006, Ecology approved the proposed amendments for six of the rights but determined that one of the claims, Claim No. 098524, was invalid. As to the other water rights, Ecology applied the legislation enacted in 2003 that addresses municipal water
¶ 87 Appellants appealed to the Board, which resolved most of the issues against appellants on summary judgment. The Board decided that it lacked jurisdiction to address appellants' constitutional challenges, characterizing them as tantamount to facial challenges. Following a hearing on the three issues not decided on summary judgment, the Board issued its final order in April 2008 and subsequently denied reconsideration.
¶ 88 As the Board found, groundwater is the primary source of water for WSU, the city of Pullman, the city of Moscow, Idaho, the University of Idaho, and the surrounding areas in Whitman County, Washington, and Latah County, Idaho. In the 1990s, the two universities and the two cities endorsed individual plans to reduce impacts of their groundwater withdrawals. WSU's water use has been below annual targets, and in 2005, WSU's water use was below the amount used in 1992, when efforts began to limit pumping.
¶ 89 WSU withdraws its water from the Grande Ronde Aquifer. It is undisputed, and the Board found, that long-term declining water levels in the Grand Ronde Aquifer threaten all of the water users in the basin if not addressed adequately. At the present time, the only recognized way to slow or reverse the aquifer decline is to reduce the withdrawal of water from it.
¶ 90 Appellants appealed the Board's decision to Whitman County Superior Court, which affirmed. When appellants' appealed to the Court of Appeals, Division Three certified the case to this court, which we accepted.
¶ 91 The Washington Administrative Procedure Act (APA), chapter 34.05 RCW, governs proceedings before the Board. An appellate court reviewing a decision of the Board sits in the same position as the superior court and applies RCW 34.05.570's standards of review directly to the agency record. Dep't of Ecology v. Theodoratus, 135 Wn.2d 582, 589, 957 P.2d 1241 (1998). Under RCW 34.05.570(3), in relevant part, a court may grant relief from an agency order in an adjudicative proceeding if it violates constitutional provisions, is outside the agency's statutory authority, erroneously interprets or applies the law, is not supported by substantial evidence, or is arbitrary and capricious. See Postema v. Pollution Control Hr'gs. Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000); Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wn.2d 769, 776, 947 P.2d 732 (1997).
¶ 92 Under the error of law standard, a court reviews the agency's interpretation and application of a statute de novo. RCW 34.05.570(3)(d); Postema, 142 Wash.2d at 77, 11 P.3d 726. If the statute is ambiguous and falls within the agency's special expertise, the agency's interpretation of the statute is given great weight. Pub. Utility Dist. No. 1 of Pend Oreille County v. Dep't. of Ecology, 146 Wn.2d 778, 790, 51 P.3d 744 (2002); Postema, 142 Wash.2d at 77, 11 P.3d 726; Theodoratus, 135 Wash.2d at 589, 957 P.2d 1241. At the end of the day, however, it is for the court to determine the meaning and purpose of a statute. Postema, 142 Wash.2d at 77, 11 P.3d 726; City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs. Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998).
¶ 93 A reviewing court "must uphold agency findings unless `[t]he order is not supported by evidence that is substantial when viewed in light of the whole record before the court....'" R.D. Merrill Co. v. Pollution Control Hr'gs. Bd., 137 Wn.2d 118, 135, 969 P.2d 458 (1999) (alterations in original) (quoting RCW 34.05.570(3)(e)). We accord deference to agency findings on factual matters. Id.; Penick v. Emp't. Sec. Dep't., 82 Wn.App. 30, 37, 917 P.2d 136 (1996).
¶ 94 Because many of the issues before the Board were decided on summary judgment,
¶ 95 The burden of establishing that Ecology's action was invalid is on appellants as the challengers asserting invalidity. RCW 34.05.570(1)(a); Pub. Utility Dist. No. 1, 146 Wash.2d at 790, 51 P.3d 744; Postema, 142 Wash.2d at 78, 11 P.3d 726.
¶ 96 On August 1, 1962, WSU was issued Certificate 5070-A (Well 4) for domestic supply for WSU, with the right quantified at 1500 gallons per minute and 2,260 acre-feet per year. On May 27, 1963, WSU was issued Certificate 5072-A (Well 5) for community domestic supply and stock water, quantified at 500 gallons per minute and 720 acre-feet per year. Appellants maintain that these rights were subject to statutory relinquishment and were relinquished in whole or in part because of nonuse over extended periods of time.
¶ 97 Ecology determined, however, (1) that these rights are for municipal water supply purposes according to the 2003 legislation that specifically defines "municipal water supply purposes," RCW 90.03.015(4); (2) that WSU is a "municipal water supplier" as defined, RCW 90.03.015(3); and (3) that each of its rights is for municipal supply purposes according to present beneficial use.
¶ 98 Under the relinquishment statutes, any water right holder who, without cause, voluntarily fails to beneficially use all or any portion of the water right for a period of five successive years relinquishes the right or portion of the right. RCW 90.14.160-.180; Dep't. of Ecology v. Acquavella, 131 Wn.2d 746, 758, 935 P.2d 595 (1997). "Once a party has shown" that a water right holder "has failed to use any or all of its right[s] for five successive years," then the burden is with the right holder to show "its nonuse falls under one of the narrow categories in RCW 90.14.140," here, for municipal supply purposes, RCW 90.14.140(2)(d). Acquavella, 131 Wash.2d at 758, 935 P.2d 595.
¶ 99 Relinquishment is determined with regard to the time of nonuse, as statute
¶ 100 To demonstrate relinquishment, appellants rely, among other things, on a table documenting the annual volumes of water that WSU pumped in acre-feet from wells, including Wells 4 and 5, the withdrawal points for water under Certificates 5070-A and 5072-A.
¶ 101 Although WSU was authorized to withdraw up to 2,260 acre-feet per year under water right Certificate 5070-A from Well 4, it pumped a maximum of only 1090 acre-feet, in 1969, and from 1989 through 2002, it pumped 740 acre-feet per year or less. Second Suppl. Decl. of Gary Wells in Supp. of WSU's Mot. for Partial Summ. J., No. 06-099, Ex. 2 (Pollution Control Hr'gs Bd. Sept. 21, 2007) (2 Admin. R. Doc. 52). WSU was authorized to withdraw up to 720 acre-feet per year under water right Certificate 5072-A but withdrew no water from Well 5 from 1986 to 1995. Id.
¶ 102 WSU claims to have switched to pumping water under these rights from unauthorized wells, but the table does not show this. It does not show increased withdrawals from other wells in sufficient quantity to account for its decreased pumping from Wells 4 and 5. Further, the rights WSU held, to withdraw from its wells other than Wells 4 and 5, were rights to amounts that were never fully withdrawn from the other wells, and it is difficult to see how water was withdrawn under Certificates 5070-A and 5072-A from WSU's other wells when the full amount of water under the rights pertaining to the other wells was never withdrawn. Moreover, WSU agrees that it reduced its water use over time. There is no dispute that WSU has never beneficially used the quantities of water authorized under its water rights.
¶ 103 While there are questions remaining about the total amount that was not used under the water right certificates, there appears to be no question that WSU did not use the full extent of its water rights under Certificates 5070-A and 5072-A for periods of at least five successive years.
¶ 104 WSU contends that the relevant question for purposes of relinquishment is whether a right is "claimed" for municipal purposes and not whether it is "issued" for municipal purposes, relying on the term "claimed" in RCW 90.14.140(2)(d). In full, RCW 90.14.140(2)(d) says that "[n]otwithstanding any other provisions of RCW 90.14.130 through 90.14.180, there shall be no relinquishment of any water right ... [i]f such right is claimed for municipal water supply purposes under chapter 90.03 RCW." (Emphasis added.)
¶ 105 The complete language of the exception shows what is meant. The exception applies to municipal water rights that have been acquired under the provisions in chapter 90.03 RCW for obtaining a right to use water for municipal water supply purposes.
¶ 106 The fact that WSU apparently combined the water from its wells into a consolidated system did not alter the purposes of the water rights it held during the time period that relinquishment occurred. Water rights issued for domestic uses were not water rights for municipal uses. The definitions section of chapter 90.14 RCW, where the relinquishment statutes are found, draws a distinction between domestic and municipal uses of water in RCW 90.14.031. The statute defines "beneficial use" to include "use for domestic water [and] municipal." RCW 90.14.031. RCW 90.14.140(2)(d), the exception itself, applies to water rights for "municipal water supply purposes" and does not mention or imply that water rights for domestic uses qualify for the exception.
¶ 107 The distinction between domestic uses and municipal uses is reflected in a large body of law in this state and other western states, confirming that the distinction between domestic use and municipal use has long been an elemental concept in water law. And while municipal use might include water for residential, domestic use, the converse has not been true. A water right issued for domestic use was not a water right that encompassed municipal use.
¶ 108 In our state, the distinction continues to be explicitly recognized in numerous statutes aside from chapter 90.14 RCW.
¶ 109 Domestic water use has been described thusly:
Robert E. Beck, Municipal Water Priorities/Preferences in Times of Scarcity: The Impact of Urban Demand on Natural Resource Industries, 56 ROCKY MT. MIN. L. INST. § 7.02[1] (2010) (quoting Armstrong v. Larimer County Ditch Co., 1 Colo.App. 49, 27 P. 235, 236 (1891)).
¶ 110 Municipal water use has been described in this way:
Stein et al., supra.
¶ 111 As can be seen, municipal uses may include uses that fall within the domestic uses category, but a water right issued for domestic use did not allow the user to put the water to any and all municipal uses. For example, the holder of a water right for domestic uses would not have been entitled to use the water under the right for a public golf course, although the holder of a water right for municipal uses could do so. In addition, as the preference lists adopted by statute in some of the western states reveal, domestic use has traditionally been regarded as superior in importance.
¶ 112 In sum, there is and has been a basic legal difference between water rights granted for municipal use and water rights granted for domestic use. I recognize that on their face the 2003 statutory provisions concerning municipal water alter the distinction insofar as a particular right now falls under the definition for "municipal water supply" purposes. But here the issue is whether statutory relinquishment occurred prior to these statutes being enacted, and throughout that time the distinction between municipal uses and domestic uses prevailed.
¶ 113 WSU maintains, however, that despite the purposes of use stated on the water rights certificates, the two rights were in fact granted for municipal uses. For example, WSU relies on language in its application for the right to appropriate water rather than the purpose actually stated on Certificate 5072-A (Well 5) for community domestic supply and stock water. The difficulty is that an applicant could state any number or type of
¶ 114 Moreover, great uncertainty would be introduced into certificated water rights if they can be disregarded in favor of after-the-fact, case-by-case inquiries into the purpose of use that the applicant attempted to obtain. Absent a showing that the issuing agency meant to grant a certificated water right for municipal uses but inadvertently failed to do so, i.e., a scrivener's error or comparable mistake, the purpose of use stated on the certificate must control. Cf., e.g., RCW 90.03.330(2) (providing for adjustment of certificates if ministerial errors are discovered).
¶ 115 WSU additionally points out that its application showed an expectation of increasing future enrollment and points out that the stated quantity of water right in Certificate 5072-A was unnecessary to serve the then-existing population. It should go without saying, after our decision in Theodoratus, that Ecology and its predecessor have not always issued water right certificates in accordance with existing statutes.
RCW 90.14.180. Nothing in this statute requires that unused water under a certificated right has to first be put to use before the right is subject to relinquishment.
¶ 116 Appellants have presented evidence that WSU relinquished any right it may have had to use the stated amount of water long before 2003, and WSU does not adequately rebut the evidence.
¶ 117 Finally, it should be noted that in other administrative review cases, the Board has addressed relinquishment in connection with water rights that were issued for community domestic purposes, showing that the Board has not equated community domestic use to municipal use. Olga Water Users, Inc. v. Dep't. of Ecology, No. 08-123, Order Granting Mot. for Summ. J. at 9 (Pollution Control Hr'gs Bd. July 10, 2009) (Board observed that "[f]ive years have not passed ..., so there has been no relinquishment of the community domestic use portion of the water right" (emphasis added)); Ga. Manor Water Ass'n. v. Dep't. of Ecology, No. 93-068, Final Findings of Fact, Conclusions of Law, & Order at 20 (Pollution Control Hr'gs Bd. Nov. 9, 1994) ("Ecology's order to show cause why Georgia Manor should not relinquish 8 gpm of the 20 gpm authorized for community domestic use ... for more than 5 consecutive years of voluntary nonuse, without sufficient cause, is affirmed" (emphasis added)). The Board's failure to similarly apply the relinquishment statute here was legal error warranting reversal. Postema, 142 Wash.2d at 77, 11 P.3d 726.
¶ 118 The rights under Certificates 5070-A and 5072-A were held as rights to withdraw water for domestic and community domestic and stock water uses. But for Ecology's and the Board's determinations that the 2003 legislation changed their character retrospectively, these rights were not rights to use water for municipal water supply uses and they were subject to relinquishment. This
¶ 119 Appellants contend that the Board's application of the 2003 definition of "municipal water supply,"
Id. at 265, 241 P.3d 1220 (alteration in original).
¶ 120 As a junior water right holder, individual appellant Scott Cornelius's place in line is lawfully subject to impact by senior rights, including those of WSU. But as appellants argue, a junior right holder is protected from impact of senior rights that in law were relinquished because of nonuse. In Lummi we reiterated that Ecology can approve changes in water rights only to the extent they are valid. 170 Wash.2d at 270-71, 241 P.3d 1220 (citing Merrill, 137 Wash.2d at 127, 969 P.2d 458). We have also observed that groundwater rights cannot be transferred or changed if lost as a result of non-use. Merrill, 137 Wash.2d at 126, 969 P.2d 458.
¶ 121 Appellants also argue that consolidation of WSU's water rights in their certificated amounts will increase WSU's access to and ability to pump water from the aquifer.
¶ 122 Appellants have shown that the Board's application of the 2003 legislation violated due process. Unlike the facial challenge in Lummi, 170 Wash.2d at 267, 241 P.3d 1220, here appellants establish that individual right holder Scott Cornelius's reasonable expectation of enjoyment of his water rights is impaired in violation of due process by the Board's application of the 2003 legislation, which effectively bars consideration of his evidence showing relinquishment prior to 2003. Due process requires that in the consideration of amendments to groundwater rights under RCW 90.44.100, historic nonuse of rights issued for domestic and community domestic and stock water uses must be evaluated and the water rights be relinquished in whole or part when appropriate under the statutes. See id. at 270-71, 241 P.3d 1220 (citing R.D. Merrill, 137 Wash.2d at 127, 969 P.2d 458; RCW 90.44.100).
¶ 123 I disagree with the majority's view that to reach this conclusion would require us to overrule Lummi and invalidate RCW 90.03.560. Majority at 207. Both contentions are incorrect. In Lummi, we acknowledged that the 2003 amendments applied to and confirmed "existing" water rights and that the amendments did not resurrect any relinquished rights. 170 Wash.2d at 263, 264, 268, 241 P.3d 1220. Similarly, RCW 90.03.560 clearly applies to existing rights, that is, rights that have not been relinquished.
¶ 124 Further, the majority says that this case demonstrates the "labeling problem" that RCW 90.03.560 was meant to address. Majority at 207. The majority reasons that in 1962 and 1963 Ecology had no reason to be precise about distinguishing between municipal and domestic uses, stating that "Ecology could have issued domestic supply certificates to entities that were functionally municipal and vice versa." Id.
¶ 125 I disagree. As discussed at length above, the distinction between domestic use and municipal use is a long-standing fixture of water law in the west. Under the statutory scheme, designated water rights may not be so easily disregarded. Although the 2003 amendments resolved a particular labeling problem regarding existing water rights utilized for municipal purposes, that circumstance is not present here. As we have explained, if a user has met application requirements under RCW 90.03.290, Ecology will issue a water rights 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.'" Theodoratus, 135 Wash.2d at 591, 957 P.2d 1241 (quoting RCW 90.03.290(3)). Thereafter, a "final certificate of water right will be issued upon a showing that the appropriation has been perfected."
¶ 126 More to the point, as we have repeatedly held, "[w]ater rights may be relinquished." Theodoratus, 135 Wash.2d at 594-95, 957 P.2d 1241 (citing RCW 90.14.130-.180); see also Lummi, 170 Wash.2d at 251-52, 241 P.3d 1220. "The failure `to beneficially use all or any part' of the right for five years, without sufficient cause, `shall relinquish' the right in whole or in part." Theodoratus, 135 Wash.2d at 595, 957 P.2d 1241 (quoting RCW 90.14.160, .170, .180); see also Lummi, 170 Wash.2d at 251-52, 241 P.3d 1220. "We will not construe the statutory scheme in a way which renders [the] provisions of the relinquishment statutes meaningless." Theodoratus, 135 Wash.2d at 595, 957 P.2d 1241. Yet that is precisely what the majority has done. The majority purports to apply Lummi, but as noted we recognized there that the 2003 amendments do not resurrect relinquished rights. 170 Wash.2d at 268, 241 P.3d 1220.
¶ 127 The fact that the legislature waited until 2003 to formally define "municipal water supply purposes" does not alter the fact that the water right designation for domestic use appearing in the 1962 and 1963 certificates did not include municipal use, such domestic use was subject to relinquishment, and was so relinquished due to nonuse long before the 2003 amendments issued. "Under RCW 90.14.180, a person who holds a water right and who voluntarily fails, without sufficient cause, to beneficially use all or a portion of the right for five successive years will relinquish all or a portion of the right." Pac. Land Partners, LLC v. Dep't of Ecology, 150 Wn.App. 740, 749-50, 208 P.3d 586 (emphasis added) (citing R.D. Merrill, 137 Wash.2d at 139, 969 P.2d 458; Motley-Motley, Inc. v. Pollution Control Hr'gs. Bd., 127 Wn.App. 62, 75, 110 P.3d 812 (2005)), review denied, 167 Wn.2d 1007, 220 P.3d 209 (2009). Such relinquished right "shall revert to the state." RCW 90.14.180; see also Pub. Util. Dist. No. 1 of Pend Oreille County v. Dep't of Ecology, 146 Wn.2d 778, 798, 51 P.3d 744 (2002) ("Statutory forfeiture [under RCW 90.14.130-.180] does not require intent to abandon.").
¶ 128 In my view, this court must remand the question of the extent to which WSU relinquished water rights under Certificates 5070-A and 5072-A. The relinquished portions of these rights cannot be recharacterized as rights for municipal uses; to do so under the circumstances violates due process. To the extent these rights have been relinquished, they are not eligible for amendment.
¶ 129 Water rights granted in the 1960's for domestic uses was not a water right granted for municipal use. Accordingly, the exception to statutory relinquishment that exists for municipal water rights did not apply to these rights during the period of time that appellants assert they were lost for non-use. The rights that WSU held for domestic uses were subject to statutory relinquishment.
¶ 130 The appellants have submitted sufficient evidence to show nonuse, in whole or in part, of groundwater rights under Certificates 5070-A and 5072-A, and as we noted in Lummi, the 2003 amendments do not resurrect relinquished rights. 170 Wash.2d at 268, 241 P.3d 1220.
¶ 131 Here, appellants have established a due process violation because vested rights were impaired by the Board's application of the 2003 legislation governing municipal water uses to WSU's water rights, which were issued for domestic uses and community domestic and stock water uses and had long since been subject to relinquishment due to nonuse.
¶ 132 This court should reverse the Board's determination that the water rights under Certificates 5070-A and 5072-A were not relinquished in whole or in part and remand for a determination of the extent to which these rights were relinquished.
¶ 133 I dissent.
WIGGINS, and GORDON McCLOUD, JJ., concurs.
Beck, supra, § 7.03[2][d] (footnote omitted).
The Board's 2008 final order stated that "[t]he extent and availability of groundwater resources in the GRA [Grande Ronde Aquifer] are poorly known, due in part to a lack of precise information about the aquifer's rate of recharge. It is therefore impossible to predict with any degree of certainty how long the water in the GRA will last." Findings of Fact, Conclusions of Law & Order, No. 06-099, at 19-22 (Pollution Control Hr'gs Bd. Apr. 17, 2008) (4 AR Doc. 89). Pumping water in the area exceeds the aquifer's recharge and increases in the aggregate pumping in the Pullman-Moscow region "will necessarily cause water-level declines within the aquifer." Id. at 21.
