Okanogan Wilderness League, Inc. v. Town of Twisp , 133 Wash. 2d 769 ( 1997 )

Madsen, J.

— The Okanogan Wilderness League (OWL) appeals from a superior court decision affirming the Pollution Control Hearings Board’s (Board) change in the diversion point of the Town of Twisp’s 1912 water right from a surface diversion point to wells drawing from groundwater. We reverse.

FACTS

In August 1912, Twisp executed a notice of water right with an intent to divert 10 cubic feet per second from the Twisp River. The diversion was for domestic purposes, fire protection, sanitary purposes, agricultural and mechanical use, and for general municipal purposes within Twisp. Twisp constructed diversionary works and water was diverted to the town. In 1927, Twisp sought approval from the Department of Ecology’s predecessor, the State Supervisor of Hydraulics, to change the point of diversion. In 1930, a certificate of change was issued, documenting a water right of 10 cubic feet per second from the Twisp River. However, the parties stipulated that based upon the size of pipe used to divert water, the most Twisp ever used was 3.85 cubic feet per second; the town never used the whole instantaneous withdrawal right of 10 cubic feet per second.

Sometime between 1939 and 1948, Twisp stopped diverting surface water from the Twisp River and began to draw water for municipal uses from wells located in the town. It belatedly applied for and received two groundwater certificates with priority dates of 1967 and 1971. The two certificates authorized instantaneous withdrawal of 500 and 1100 gallons per minute, a total of 1600 gallons per minute, equivalent to 3.55 cubic feet per second. These certificates authorized a maximum annual withdrawal of 224 acre feet per year. By the 1990’s, Twisp’s withdrawals far exceeded the amount of water authorized under the groundwater certificates.

Floods in 1948, or sometime thereafter, destroyed the diversionary works along the Twisp, and the area was rip-rapped.¹ The record does not show whether Twisp did the riprapping.

In 1993, Twisp applied to the Department of Ecology for a new water right. The Department informed Twisp that any new permit would be subject to limitations to protect minimum instream flows, and that the Department was postponing decisions on new permits. A Department employee discovered the 1930 certificate of change for the 1912 right in Department records. Twisp then applied to the Department to change the point of diversion of the 1912 water right from the surface waters of the Twisp River to two new wells located within the town, to draw from groundwater which would be in hydraulic continuity with the Methow River (into which the Twisp River flows), and to change the specified uses to general municipal purposes. The Department of Ecology investigated the application for a change in diversion point, and concluded that the change in point of diversion should be allowed, with an annual limitation of 610 acre feet per year based on historical use of the 1912 water right and the 1930 change. The Department determined that the 1967 and 1971 groundwater rights would be supplemental to the 1912 water right (supplemental water rights can be used only when the primary right goes unfulfilled) insofar as the annual limitations are concerned (610 acre feet per year under the 1912 right; 224 acre feet per year under the groundwater certificates).² The Department further concluded that Twisp was entitled to an instantaneous withdrawal of 10 cubic feet per second for the 1912 water right, and 3.55 cubic feet per second for the 1967 and 1971 rights, i.e., the instantaneous withdrawal rates under the groundwater certificates were additive to the 1912 instantaneous withdrawal rate. There is no explanation of why the annual limitations were determined to be supplemental, but the instantaneous rates additive.

In reaching the 610 acre feet per year figure, the Department found the 1912 right had been used for three purposes: irrigation, power generation, and domestic water supply. The Department found that 350 acre feet per year was used for irrigation, using surveyor’s maps from 1924 to determine that 160 acres had been irrigated. The maps were color coded and identified 70 acres of "irrigated” land, and 90 acres of "cleared” land. The Department found that 148 acre feet per year had been used to power a flour mill for 10 hours a day, 180 days a year. Finally, the Department found that the right supplied domestic water to 500 people in the amount of 112 acre feet per year.

In December 1993, the Yakama Indian Nation and OWL filed separate notices of appeal from the findings, conclusions and decision of the Department of Ecology, and their appeals were consolidated. Subsequently, the Yakama Indian Nation voluntarily withdrew its appeal. Following a formal hearing held in July 1994 before the Pollution Control Hearings Board (Board), the Board issued findings of fact, conclusions of law, and an order confirming the Department’s decision except that the perfected 1912 right was reduced to an instantaneous rate of 3.85 cubic feet per second based on the parties’ stipulation that this is all that Twisp ever withdrew at any time. The annual limitation of 610 acre feet for the 1912 right was reduced to 570 acre feet per year, because the Board found that if all the "cleared” lands shown on the surveyor’s maps were irrigated, then there would have been no reason for a separate color coded designation of "irrigated” lands. The Board found that a "reasonable inference may be drawn that 80% of the cleared lands were irrigated” and thus only 310 acre feet was used for irrigation. Clerk’s Papers (CP) at 616. Finally, the Board concluded that the 1967 and 1971 groundwater rights were supplemental to the 1912 right, both as to instantaneous rates and annual limitations.

The Board rejected OWL's claim that the 1912 right had been abandoned, concluding that no intent to abandon had been shown. The Board also concluded that Twisp’s requested change in diversion would not cause detriment or injury to other water right holders. The Board remanded the matter to the Department of Ecology for issuance of a certificate of change in point of diversion in accord with its decision.

In September 1994, OWL filed a petition for judicial review in Okanogan County Superior Court. Although it served this petition upon an assistant attorney general for the Department of Ecology, the Department of Ecology, legal counsel for the Yakama Indian Nation, the Board, and Twisp’s attorney of record, it did not serve the petition on the Town of Twisp.

In March 1996, the Superior Court issued a memorandum opinion affirming the Board’s decision, and, in April 1996, entered an order denying the petition for review. OWL then appealed to this court. Twisp moved to dismiss, arguing that OWL failed to serve all the parties of record as required by the Administrative Procedure Act, and therefore the superior court lacked jurisdiction. This motion has been passed to the merits for consideration at the same time as the other issues in the appeal. The Center for Environmental Law and Policy was granted leave to file an amicus curiae brief in support of the appeal.

ANALYSIS

Initially, on September 26, 1996, Respondent Town of Twisp filed a motion in this court to dismiss OWL’s appeal on the ground that OWL did not serve Twisp, a party of record, with its petition for review of the Board decision and therefore the Okanogan Superior Court lacked subject matter jurisdiction. Twisp relies upon the recent decision in Union Bay Preservation Coalition v. Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 902 P.2d 1247 (1995), where we held that a superior court does not obtain jurisdiction under the Administrative Procedure Act (APA), RCW 34.05, over an appeal from an agency decision where the appealing party serves the petition for review upon an opposing party’s attorney of record but not on the opposing party of record. See RCW 34.05.542(2). We expressly limited the application of Union Bay to the APA and declined to consider other statutes and regulations concerning service requirements. Union Bay, 127 Wn.2d at 620. Recently, the court reiterated that Union Bay is limited to the APA. Black v. Department of Labor & Indus., 131 Wn.2d 547, 555-56, 933 P.2d 1025 (1997).

Due to a conflict between RCW 34.05.542(2) and former RCW 43.21B.190, we find in this case that service was made pursuant to former RCW 43.21B.190 (amended in relevant part, see Laws op 1995, ch. 382, § 4). Accordingly, Union Bay does not control. Twisp’s motion is denied.³

Nevertheless, the APA does govern procedures on review of the agency action in this case. Under RCW 34.05.570(3), agency action may be reversed if the agency has erroneously interpreted or applied the law, the agency’s order is not supported by substantial evidence, or the order is arbitrary or capricious. In reviewing the Board’s decision, this court sits in the same position as the superior court and applies the APA standards directly to the agency record. Jensen v. Department of Ecology, 102 Wn.2d 109, 113, 685 P.2d 1068 (1984). Finally, where water permit decisions are concerned, the Department of Ecology’s discretionary decisions should not be set aside "absent a clear showing of abuse.” Id. at 113; Schuh v. Department of Ecology, 100 Wn.2d 180, 186, 667 P.2d 64 (1983).

RCW 90.03.380 authorizes a change in diversion point, and provides in part:

The right to the use of water which has been applied to a beneficial use in the state shall be and remain appurtenant to the land or place upon which the same is used: PROVIDED, HOWEVER, . . . The point of diversion of water for beneficial use or the purpose of use may be changed, if such change can be made without detriment or injury to existing rights.

OWL contends that RCW 90.03.380 protects existing rights by requiring that a point of diversion may be made only to the extent the water right has been put to beneficial use. Further, a change in point of diversion may be made only if no harm to other water rights occurs. Together, OWL urges, these requirements mean that a change in point of diversion may be allowed only where water was being put to actual beneficial use prior to the transfer, i.e., the diversion point of water under a water right may not be changed where the right holder has not continuously applied the water to a beneficial use. Here, OWL maintains, Twisp did not beneficially use the 1912 water right for nearly 50 years, and therefore no change in point of diversion of water under that right may be permitted.

Washington’s statute is consistent with the principle of Western water law that a change in the diversion point of a water right put to beneficial use may be granted unless that change causes harm to other water rights. Both upstream and downstream water right holders can object to a change in the point of diversion or the place of use, which could affect natural and return flows and, thus, adversely affect their rights. A. Dan Tarlock, Law of Water Rights and Resources § 5.17[3][a], at 5-92.1 to .3 (1996); see, e.g., Haberman v. Sander, 166 Wash. 453, 7 P.2d 563 (1932); Farmers Highline Canal & Reservoir Co. v. City of Golden, 129 Colo. 575, 272 P.2d 629 (1954). The statute also presumes that a change in point of diversion may be made only where water has been put to a beneficial use. This is also consistent with established water law principles. A transferred right or a change in point of diversion may be granted only to the extent the water right has historically been put to beneficial use. E.g., May v. United States, 756 P.2d 362, 370-71 (Colo. 1988); City of Westminster v. Church, 167 Colo. 1, 445 P.2d 52, 57 (1968); Orr v. Arapahoe Water & Sanitation Dist., 753 P.2d 1217, 1224 (Colo. 1988); Basin Elec. Power Co-op. v. State Bd. of Control, 578 P.2d 557, 563 (Wyo. 1978); see also Tarlock, § 5.17[5], at 5-93. "[Bjeneficial use determines the measure of a water right. The owner of a water right is entitled to the amount of water necessary for the purpose to which it has been put, provided that purpose constitutes a beneficial use.” Department of Ecology v. Grimes, 121 Wn.2d 459, 468, 852 P.2d 1044 (1993).

Because the diversion point may not be changed where water has not been put to a beneficial use, the Department of Ecology contends that before a change in point of diversion may be approved under RCW 90.03.380, the existence and quantification of the right must be determined, see Schuh, 100 Wn.2d 180, and the right must not have been extinguished or lost over the years. (Both quantification of the right and whether it has been abandoned are at issue, and they are discussed below.)

Twisp argues, however, that the Department of Ecology has no authority to determine the validity of the underlying right. Twisp relies upon Rettkowski v. Department of Ecology, 122 Wn.2d 219, 228, 858 P.2d 232 (1993) (Rettkowski I). There, the court held that the Department has no authority to pass upon the validity of water rights and issue cease and desist orders to protect water right holders it has determined have priority. The court acknowledged the Department has authority to tentatively determine whether there are existing rights in order to determine whether to issue permits to appropriate water, but said in the event a conflict exists, the Department must deny the permit rather than determine who has the better claim. Id.

Quantification of a water right is required when a change in point of diversion is sought because RCW 90.03.380 authorizes a change in point of diversion only where water "has been applied to a beneficial use . . . .” Further, the statute states that "[i]f it shall appear that . . . such change [in point of diversion] may be made without injury or detriment to existing rights, the department shall issue to the applicant a certificate . . . granting the right . . . for such change of point of diversion . . . .” RCW 90.03.380. (Here, the Board remanded to the Department for issuance of a certificate of change with annual and instantaneous withdrawal limitations specified by the Board.) The statute thus indicates that quantification of the right to the extent the right has been beneficially used is needed before a certificate of change may be issued. If a right has not been beneficially used to its full extent, or if the right has been abandoned, then issuance of a certificate of change, in the amount of the original right, could cause detriment or injury to other rights.

Rettkowski I is not contrary. It suggests by analogy that in order to decide whether to approve a change in point of diversion, the Department must tentatively determine the existence and extent of beneficial use of the water right. See Rettkowski I, 122 Wn.2d at 228 (Department has authority to tentatively determine the existence of water rights in order to decide whether to grant permits to appropriate water). Also, if the Department concludes that a water right has been abandoned or otherwise lost, then it should deny the change in diversion point. The Department’s determination could not, however, be a final determination of the validity of the water right.

However, to the extent that OWL suggests that nonuse of the water right, in and of itself, means that a change in diversion point may not be permitted under RCW 90.03.380 because "revival” of the right will adversely affect other water rights, the argument is incorrect. The statute plainly refers to water beneficially used and to avoidance of harm to other water rights, not merely to nonuse for a period of time. The analysis in Atencio v. Richfield Canal Co., 177 Colo. 22, 492 P.2d 620 (1972), upon which OWL relies, is in accord. There, a senior appropriator made no effort for 50 years to reconstruct a destroyed dam and diversion works which had historically diverted water from the confluence of two rivers, the Conejos and the San Antonio, but instead diverted water from other points along the Conejos making no use of water from the San Antonio. When the senior appropriator rebuilt the dam and diversionary works, the court held the senior appropriator could not use the newly constructed dam and diversion works to draw water from the San Antonio because to do so would be detrimental to appropriators on the San Antonio. The court noted that although in a previous trial court proceeding the trial court had held that the senior appropriator had not abandoned its water right along the Conejos, the trial court also held that the senior appropriator had abandoned the original headgate due to over 50 years of nonuse and the failure to make any attempt during that time to rebuild the dam and diversionary works. Id. at 622. The trial court also found that San Antonio water had not been used for over 50 years and resumption of its use would be an illegal interference with the water rights of the appropriators on the San Antonio. That judgment had not been appealed, and it was binding on the parties. Id.

The abandonment of the destroyed dam and diversionary works was key to the court’s decision, as further shown by its reliance on authority stating that one who appropriates from an abandoned ditch does not succeed to the old water right, but instead stands alone on the merits of its own appropriation. Id. at 623 (citing authority). Thus, contrary to OWL’s apparent contention, Atencio does not hold that a long period of nonuse alone prevents a change in point of diversion. Here, whether Twisp’s failure to beneficially use the 1912 water right for nearly 50 years precludes a change in diversion point under RCW 90.03.380 depends upon whether that right has been abandoned or otherwise extinguished. Neither the statute nor any authority cited by OWL supports the conclusion that the sole inquiry is whether water has been benefidaily used continuously up to the time the change in diversion point is sought.

Under RCW 90.03.380 a change in diversion point may be granted only to the extent the water right has been put to beneficial use, has not been abandoned or otherwise extinguished, and does not cause detriment or injury to other right holders.

OWL maintains that Twisp voluntarily abandoned its 1912 water right long before it applied for a change in point of diversion. This issue is necessarily one of common law abandonment, because a water right for municipal water supply purposes is exempt from statutory forfeiture of water rights through nonuse. RCW 90.14.140.

Abandonment is the intentional relinquishment of a water right. Jensen, 102 Wn.2d at 115; Miller v. Wheeler, 54 Wash. 429, 435, 103 P. 641 (1909). Intent is determined with reference to the conduct of the parties. Id. The burden of proof of abandonment is on the party alleging abandonment. Department of Ecology v. Acquavella, 131 Wn.2d 746, 757, 935 P.2d 595 (1997); Miller, 54 Wash. at 436; Tarlock, § 5.18[1], at 5-107. Nonuse is not per se abandonment. Tarlock, § 5.18[1], at 5-106. However, the general rule in western water law is that nonuse is evidence of intent to abandon, and long periods of nonuse raise a rebuttable presumption of intent to abandon, thus shifting the burden of proof to the holder of the water right to explain reasons for the nonuse. Id. at 5-107; see City & County of Denver v. Snake River Water Dist., 788 P.2d 772, 776 (Colo. 1990) (29 years). In re Clark Fork River Drainage Area, 254 Mont. 11, 833 P.2d 1120, 1123 (1992) (nonuse by city of two water right claims for over 23 years created rebuttable presumption of abandonment though city continued to carry claims as assets on its books during periods of nonuse); State ex rel. Reynolds v. South Springs Co., 80 N.M. 144, 452 P.2d 478 (1969); Moore v. United Elkhorn Mines, 64 Or. 342, 127 P. 964, 967-68 (1912) (nonuse for 10 years raises rebuttable presumption of abandonment). Both OWL and the Department of Ecology argue in accord with this general rule that in this state there should be a rebuttable presumption of intent to abandon from long periods of nonuse.

Twisp argues, however, that in Washington intent to abandon should not be presumed, citing Miller. Miller does not address the matter, although it does state that "courts will not lightly decree an abandonment of a property so valuable as that of water in an irrigated region.” Miller, 54 Wash. at 435; see also Jensen, 102 Wn.2d at 115. However, that principle applies throughout arid western states which have followed the rule that long periods of nonuse raise a rebuttable presumption of intent to abandon. Twisp also cites Thorp v. McBride, 75 Wash. 466, 135 P. 228 (1913). There, the court said that abandonment would not be justified by nonuse alone, and then added that it is also well established that the water must be put to beneficial use. Id. at 469. The water right there was intended for irrigation, mining, domestic use, and power, but had not been beneficially used for 10 or 11 years. The court said the evidence disclosed there was in fact no irrigation, mining, domestic or power uses to which the water could be applied, and refused to preserve the use for some speculative future. Again, the case does not expressly address the issue whether a rebuttable presumption is raised by long periods of nonuse. Further, although OWL and the Department contend the case stands for the proposition that the water right holder failed to provide satisfactory reasons for nonuse, and thus inferentially falls within the cases recognizing the rebuttable presumption of intent to abandon, Thorp does not rest on that ground. The evidence of intent the court examined was not evidence offered in an effort to justify nonuse of the water right, but was instead evidence that no beneficial use of the water existed and the holder’s intended uses were purely speculative future uses.

The rule that a rebuttable presumption of intent to abandon is raised through long periods of nonuse, and the shifting of the burden of proof to the water right holder to give reasons justifying the nonuse, is consistent with the high priority of putting water to beneficial use. This court has previously given weight to well-established principles of western water law. Department of Ecology v. Bureau of Reclamation, 118 Wn.2d 761, 767-69, 827 P.2d 275 (1992); Grimes, 121 Wn.2d at 475. We adopt the general rule that under the common-law theory of abandonment of water rights long periods of nonuse raise a rebuttable presumption of intent to abandon a water right.

Here, the Board found that Twisp’s failure to use the 1912 water right since at least 1948 raised a presumption of intent to abandon. The Board further found that Twisp’s failure to list any other appurtenant water rights when it applied for the groundwater certificates granted in 1967 and 1971 lent support to the presumption. The evidence in the record supports the Board’s determination. It shows that Twisp stopped using the surface water under the 1912 right sometime between 1939 and 1948 when the town began using groundwater from wells located within the town. Sometime in or after 1948, the diversionary works were destroyed in floods and subsequently the diversion area was riprapped. Although the evidence does not show who did the riprapping, Twisp did not try to reclaim the diversion point. Finally, as the Board noted in its findings, in 1967 and 1971 when Twisp belatedly sought groundwater certificates for its wells, 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. CP 1042, 1059.⁴ While Twisp argues that the testimony of the Town Manager who looked into Town records without finding any which indicated intent to abandon the right shows lack of intent to abandon; OWL correctly points out that the testimony was excluded as inadmissible hearsay. CP 552-53. The Board permitted Twisp to submit documentary evidence from its records after the hearing, id., but no evidence was submitted from after 1939.

The Board then concluded, however, that Twisp’s continuous existence and need for a municipal water supply establish the presumption of intent to abandon. Twisp argues that this reasoning is augmented by enactment in 1967 of RCW 90.14.140, which exempts municipal water rights from statutory relinquishment through nonuse. Twisp says the Legislature could not have intended the exception from statutory relinquishment after 1967 but not from abandonment prior to 1967. We disagree. RCW 90.14.140 applies only to statutory relinquishment based on nonuse alone. Although the court in Acquavella, 131 Wn.2d at 757-58, said in dicta that the statute codifies the common law, common-law abandonment and statutory forfeiture are quite different concepts, with proof of common-law abandonment requiring proof of intent to abandon while statutory forfeiture does not. See generally Tarlock, §§ 5.18[1] (abandonment), 5.18[2] (statutory forfeitúre; no showing of intent to abandon required). Because RCW 90.14.140 does not require proof of intent to abandon, it is not a codification of common-law abandonment. Moreover, the statute clearly does not apply to claims of abandonment based upon nonuse before 1967. Acquavella, 131 Wn.2d at 758.

Other than RCW 90.14.140, Twisp cites no authority for the proposition that a municipality’s continuing existence and need for a water supply rebuts a presumption of intent to abandon arising from a long period of nonuse, or otherwise precludes a finding of abandonment. In contrast, OWL argues, and the Department of Ecology agrees, that a municipality may abandon a water right through years of nonuse. See Consolidated Home Supply Ditch & Reservoir Co. v. Berthoud, 896 P.2d 260 (Colo. 1995); City & County of Denver v. Snake River Water Dist., 788 P.2d 772; In re Clark Fork Drainage Area, 833 P.2d 1120. Otherwise, OWL argues, a municipality could hold unused water rights for speculative purposes, a practice disapproved of in Thorp. We agree with this reasoning.

In view of the nonuse of the water right since at least 1948, the Board correctly found a presumption of abandonment in this case. However, it incorrectly relied upon Twisp’s continuing existence as a municipality to rebut the presumption. Twisp has offered no other reason explaining its nonuse sufficient to overcome the presumption of intent to abandon.

The Department of Ecology presents a markedly different argument than Twisp’s. Ecology maintains the evidence which shows that Twisp never abandoned the 1912 water right is its change in source of water supply to the two wells under the 1967 and 1971 groundwater certificates. The Department maintains that Twisp effectively changed its point of diversion at that time, although it did so without state authorization. The Department points out that the well water was drawn from groundwater in hydraulic continuity with the Methow River aquifer. Thus, in the Department’s view, Twisp continuously used the same water right. The Department cites Lengel v. Davis, 141 Colo. 94, 347 P.2d 142 (1959) for the proposition that an unauthorized, unprotested change in point of diversion is not evidence of abandonment but instead is evidence of nonabandonment.

The Department’s argument is raised for the first time upon this review. It also is inconsistent with its position before the Board, where its investigator conceded there was a period of nonuse, and its counsel agreed the 1912 water right had not been used for a long time. CP 490-91, 617. Further, Twisp applied for its two groundwater permits as new water rights, not as a change in diversion point, and in fact the applications and approvals expressly state there were no other water rights appurtenant to the town’s lands. CP 1032-42, 1044-60. The Board did enter as a conclusion of law, however, that the 1967 and 1971 groundwater rights were intended to be supplemental to the 1912 right. CP 603, 619. The groundwater permits do not state they are supplemental rights, and in light of the express statements when those permits were sought and granted that no other water rights were appurtenant, it is difficult to see how in 1967 and 1971 the groundwater rights could have been intended to be supplemental to the 1912 right. As to Lengel, the unauthorized change in point of diversion there clearly involved the same water right. The same cannot be said of Twisp’s change to withdrawing water from the wells. It is more likely that the town illegally began to draw water from a new source without regard to the 1912 right. In any case, the 1967 and 1971 groundwater certificates clearly evidence water rights distinct from the 1912 right. We reject the Department’s argument.

We hold that the change in diversion point was erroneously granted. The 1912 right has been abandoned.

OWL seeks an award of attorney fees on this appeal under RCW 90.14.190, which authorizes the superior court to award fees to the appellant if it finds that the appellant was injured by an arbitrary, capricious, or erroneous order of the Department of Ecology. The Department of Ecology maintains that OWL has shown no injury or invasion of any legally protected interest. See Rettkowski v. Department of Ecology, 128 Wn.2d 508, 518, 910 P.2d 462 (1996) (Madsen, J. dissenting) (Rettkowski II). The Department says that no injury occurred because Ecology granted a change in point of diversion to two proposed wells, unlike Rettkowski II, where the appropriators were ordered to cease exercising their rights. We agree. In Rettkowski II the appropriators were forced to stop irrigating and to expend time and effort in quashing cease and desist orders. Id. Here, in contrast, there has been no order or decision having any actual impact on any water rights. We deny OWL’s request for attorney fees.

Reversed.

Dolliver, Smith, Guy, Johnson, Alexander, and Sanders, JJ., concur.

1 "Riprap” is defined in relevant part as "[i]rregularly broken and random-sized large pieces of quarry rock . . . used for . . . revetments!,]” with "revetment” defined in relevant part as "a facing on an embankment to prevent erosion.” Cyril M. Harris, Dictionary op Architecture and Construction 409, 406 (1975).

2 The Town of Twisp erroneously states that the Department of Ecology determined the 1912 right would be supplemental to the 1967 and 1971 rights.

3 In oral argument the Respondents were invited to address this issue. In response to questions, counsel for the Department of Ecology opined that Union Bay Preservation Coalition v. Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 902 P.2d 1247 (1995), is inapplicable. Counsel for Twisp did not address its motion.

4 Okanogan Wilderness League (OWL) also points out that in 1993 when Twisp approached the Department of Ecology it sought to expand its groundwater right, and was unaware it had a 1912 water right. It became aware of the right only when it was discovered in the Department’s records. The record supports these statements.