Public Utility District No. 1 of Pend Oreille County, Respondent, v. The Department of Ecology, Petitioner, Center for Environmental Law and Policy, Respondent, 146 Wash. 2d 778

Madsen, J. — This case raises the question whether the Department of Ecology has authority to condition a water quality certification under the Clean Water Act of 1977 (33 U.S.C. §§ 1251-1387) on maintenance of minimum instream flows, where such conditions affect existing water rights. The case also involves issues concerning RCW 90.03.380, the surface water statute governing changes in and transfers of water rights, and issues of abandonment and statutory forfeiture of water rights.

We conclude that the Department of Ecology has authority to impose bypass flow conditions in a water quality certification regardless of whether the applicant has existing water rights that may be affected. We also conclude that when acting on change applications under RCW 90.03.380, Ecology may not deny an application based upon public interest considerations, and that the change statute does not apply to inchoate water rights. In addition, we conclude that the water rights at issue were neither abandoned nor forfeited under

chapter 90.14 RCW. FACTS In November 1994, Public Utility District No. 1 of Pend Oreille County (the District) applied to the Federal Energy Regulatory Commission to amend its hydroelectric license, issued under the Federal Power Act (16 U.S.C. §§ 791a-839), in order to develop the Sullivan Creek Hydroelectric Project. The District plans to release water from Sullivan Lake to Mill Pond Reservoir. Water from Mill Pond will then be diverted for approximately three miles by pipeline following an existing flume right of way to a powerhouse located near Metaline Falls.

The water will then be discharged back into Sullivan Creek at the powerhouse. The bypass reach of Sullivan Creek from Mill Pond to the powerhouse is about three and one-quarter miles. The District holds water rights in dispute in this case of 550 cubic feet per second (cfs) on Sullivan Creek, Harvey Creek, and Sullivan Lake, which include the right to store, divert, and use water to generate hydroelectric power. A right of 110 cfs has a priority date of June 26, 1907, and includes diversion and storage rights. The remaining 440 cfs is a permitted, unperfected right that has a priority date of June 3,1980.

It is subject to a minimum instream flow of 10 cfs in Sullivan Creek. The 1980 right is supplementary to the 1907 right. Before 1956, the Portland Cement Company and Lehigh Portland Cement Company owned the Sullivan Lake Hydroelectric Project, which included the Sullivan Lake Dam and reservoir. The reservoir was used to store water for later release to generate power. The project included the Mill Pond dam and diversion works, which diverted water into a wooden flume and canal system to a forebay, from which the water was transported to the Sullivan Creek powerhouse.

The project was used to generate power from 1907 to 1956. In 1956, a portion of the flume collapsed. Also in 1956, the District agreed to purchase the project together with the 1907 water right, provided a license was obtained under the Federal Power Act. In 1958, the Federal Power Commission granted a 50-year nongenerating license that allowed the District to use its storage right for the storage and release of water for power generation by others.

The nongenerating license included language that indicated the Sullivan Creek project had been abandoned, but contemplated that generation of hydroelectric power utilizing the Sullivan Creek Project would be reestablished when feasible. In 1959, the District requested and obtained an amendment to the license, in order to clarify that it intended to preserve its water right for use in power production. Following its purchase, the District took no action to maintain the flume or intake structure that had been used to divert water for power generation.

The District decommissioned the project, removing the turbines and filling the turbine pits with rock and gravel. The District engaged in feasibility studies beginning in 1961, which led to possible new projects involving construction of a new dam. In 1965, the District applied for a new federal license for a hydroelectric project. Maps accompanying the application indicated that the wooden flume had collapsed. In 1964, the District applied for and obtained additional water rights and a change in point of diversion to support the power project under this application.

Thus, a change in point of diversion of the 1907 right was approved, with the new diversion point located just south of the confluence of Sullivan Creek and Outlook Creek, at an anticipated new reservoir site. In 1966, Ecology approved a reservoir permit for the proposed project. By 1969, the District concluded that the 1965 development plan was not economically feasible, and abandoned that project. In 1978, the District had a short-term contract to sell power from a proposed new Sullivan Creek project, including an expanded reservoir. After the other contracting party withdrew, this project was put on hold.

No other decision to proceed with a hydroelectric project was made until the District filed its 1994 application to amend its license in order to generate power. The District did, however, engage in a number of engineering studies in the meantime, and, as indicated, in 1980 it applied for a supplementary water right for future development of the Sullivan Creek project. The application was granted in 1986. The District paid all annual state hydroelectric licensing fees in connection with its 1907 water right.

It also paid fees in connection with the 1980 water right, although for a period of years it failed to pay the fees for most of the 440 cfs right, due to a clerical error. In 1998, it informed Ecology about the missing fees and paid the late fees. In 1992, the District proposed to reestablish power generation. The new Sullivan Creek Project would use the same configuration for the project as the original project, but would be bigger than the original. As noted, in 1994 the District filed the application with the Federal Energy Regulatory Commission to amend its federal license to allow power generation.

Because the project requires a federal license, on October 30, 1996, the District filed an application for a state water quality certification with the Department of Ecology (Ecology), as required under the Clean Water Act. On October 28, 1997, Ecology issued an order certifying that the District’s project complies with the act and state law, but conditioned the certification on maintenance of additional specified instream flows in Sullivan Creek.

Ecology imposed these conditions to meet state and federal clean water standards prohibiting degradation of state waters that would interfere with or injure existing beneficial uses. Sullivan Creek provides habitat for several fish species, including rainbow, brown, and cutthroat trout, as well as serving as a significant recreational and aesthetic resource. In order to carry out its new proposed project, on June 7, 1993, the District filed two applications to change the points of diversion of the 1907 and 1980 rights to the original diversion point of the 1907 water right, about 7,500 feet downstream.

On March 17,1998, Ecology issued orders denying the applications. As to the 1907 right, Ecology denied the change application on the bases that the District had abandoned the right based upon nonuse of the water since 1956, and that approval of the change would be detrimental to the public interest. As to the 1980 right, Ecology denied the change application on the bases that a change may not be granted where inchoate water rights are concerned, that the right had been relinquished due to failure to pay annual hydroelectric licensing fees, and that approval would be contrary to the public interest.

The District appealed from all three orders to the Pollution Control Hearings Board (Board). The Center for Environmental Law and Policy intervened in the appeal of the water quality certification. The Board consolidated the appeals. The District and Ecology then filed cross motions for

summary judgment. On October 15, 1998, the Board issued an amended

summary judgment order. The Board granted

summary judgment in favor of Ecology, ruling, in relevant part, that

(1) Ecology has authority to condition a water quality certification under § 401 (33 U.S.C. § 1341) on maintenance of specified instream flows where the applicant has existing water rights;

(2) RCW 90.03.380, the statute relating to changes and transfers of surface water rights, does not apply to inchoate rights, and thus Ecology’s denial of a change in point of diversion of water under the 1980 right was correct;

(3) Ecology has authority to consider the public interest when acting on an application for a change in point of diversion under RCW 90.03.380; and

(4) Ecology and the Board have authority to make tentative determinations as to the validity of water rights when acting on and reviewing the propriety of a change application. The Board granted

summary judgment in favor of the District on the issue whether it had relinquished its 1980 water right for failure to timely pay the annual hydroelectric licensing fees. The Board denied

summary judgment on the issue of abandonment of the 1907 right. The District, with Ecology’s concurrence, sought interlocutory review of the

summary judgment order by this court. Review was denied. A final adjudicatory hearing on remaining issues was held January 25 through 27, 2000. On August 15, 2000, the Board issued its amended final findings of fact and conclusions of law and order. In relevant part, the Board upheld the bypass flow conditions in the § 401 water quality certification.

The Board stated that the District’s proposed project, with its withdrawal of water from the bypass reach, will “be devastating to existing spawning habitat.” Clerk’s Papers (Final Findings of Fact, Conclusions of Law No. 45, and PCHB (Pollution Control Hearings Board) Order No. 97-177) at 17-18 (Wash. Oct. 15, 1998) (although denominated a conclusion of law, this part of conclusion 45 is a finding of fact).

The Board found that “the state has reasonably required that the power project protect an already impaired stream, due in large part from the District’s dam, from further habitat degradation.” Clerk’s Papers (Final Findings of Fact, Conclusions of Law No. 26) at 11. The Board reversed Ecology’s denial of a change in point of diversion of the 1907 water right, ruling that the District did not abandon its 1907 water right and remanding to Ecology for consideration of whether a change would be contrary to the public interest in light of the bypass flow conditions in the § 401 certification.

Other issues resolved by the Board are not pertinent to our review. Both Ecology and the District sought review in Pend Oreille County Superior Court. The court consolidated the petitions for review. On October 31, 2000, the Board issued a certificate of appealability pursuant to RCW 34.05.518. Ecology then filed a motion for discretionary review by this court, and the District filed an answer, raising additional issues. Direct discretionary review was granted. I. RCW 90.03.380 A. Application to Inchoate Water Rights This court reviews the Board’s orders under the state Administrative Procedures Act. Postema v.

Pollution Control Hearings Bd., 142 Wn.2d 68, 76-77, 11 P.3d 726 (2000); Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 589, 957 P.2d 1241 (1998). The court applies the standards of review in RCW 34.05.570(3) directly to the agency record. Postema, 142 Wn.2d at 77; Theodoratus, 135 Wn.2d at 589. Relief may be granted where the agency’s

interpretation or application of the law is erroneous, the order is not supported by substantial evidence, or the order is arbitrary or capricious. RCW 34.05.570(3)(d), (e), (i); see Postema, 142 Wn.2d at 77; Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wn.2d 769, 776, 947 P.2d 732 (1997). Here, the facts are not disputed. Our review is of the agency’s

interpretation of the law and application of the law to the facts. Where statutory construction is concerned, the error of law standard applies. RCW 34.05.570(3)(d). Under this standard, the court determines the meaning and purpose of a statute de novo, although in the case of an ambiguous statute which falls within the agency’s expertise, the agency’s

interpretation of the statute is accorded great weight, provided it does not conflict with the statute. Postema, 142 Wn.2d at 77. The burden of establishing the invalidity of agency action is on the party asserting the invalidity. RCW 34.05.570(l)(a); Postema, 142 Wn.2d at 77. The District contends that the Board erred in affirming Ecology’s denial of a change in point of diversion of water under the 1980 inchoate water right. The District argues that to the extent our decisions in Okanogan Wilderness League and R.D. Merrill Co. v.

Pollution Control Hearings Board, 137 Wn.2d 118, 969 P.2d 458 (1999) hold that inchoate rights are not subject to change under RCW 90.03.380, they should be overruled. Applications for changes and transfers of surface water rights generally are governed by RCW 90.03.380. As we explained in Okanogan Wilderness League, 133 Wn.2d at 777-78, RCW 90.03.380 presumes that water has actually been put to beneficial use, thus permitting changes in point of diversion if, and to the extent that, the water has been beneficially used. See also R.D. Merrill, 137 Wn.2d at 125.

As we noted, the statute thus accords with a number of western water law decisions. Okanogan Wilderness League, 133 Wn.2d at 778 (citing cases). The District maintains, though, that we failed to distinguish between the first sentence of the statute and the second. RCW 90.03.380(1) provides in relevant 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 ....

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. In the District’s view, the first sentence requires that water actually be beneficially used before it can become appurtenant to the land, but the second allows a change in point of diversion of water for a beneficial use prior to applying water to a beneficial use. We do not agree.

First, statutes should be read as a whole and, here, when read as a whole the statute’s reference to “beneficial use” in the second sentence indicates the same beneficial use requirement as in the first sentence—actual beneficial use. See Donovick v. Seattle-First Nat’l Bank, 111 Wn.2d 413, 415, 757 P.2d 1378 (1988) (statute should be read in its entirety). Second, where the Legislature has intended that unperfected rights be covered by a change statute, it has plainly provided so.

Unlike the surface water change statute, the ground water change statute does authorize a change in the place of withdrawal under an unperfected right. RCW 90.44.100; see R.D. Merrill, 137 Wn.2d at 130. The difference in the two statutes shows that the Legislature intended they do not apply to the same type of rights. See Clallam County Deputy Sheriff’s Guild v. Bd. of Clallam County Comm’rs, 92 Wn.2d 844, 851, 601 P.2d 943 (1979); State ex rel. Bell v. Superior Court, 196 Wash. 428, 433, 83 P.2d 246 (1938); State v. Hubbard, 106 Wn. App. 149, 153, 22 P.3d 296, review denied, 145 Wn.2d 1004 (2001).

We will not disturb the Legislature’s deliberate choice to treat the two types of water rights differently. Third, the Legislature has confirmed our reading of RCW 90.03.380. In 1999, subsequent to our decision in Okanogan Wilderness League, the Legislature enacted two statutes providing for changes in point of diversion where inchoate rights are involved.

In RCW 90.03.395, the Legislature stated that it intends to allow modification of the point of diversion in a water right permit when such a modification will provide both environmental benefits and water supply benefits and nothing in RCW90.03.397 is to be construed as allowing any other change or transfer of a right to the use of surface water which has not been applied to a beneficial use. (Emphasis added.) RCW 90.03.397 states in relevant part: The department may approve a change of the point of diversion prescribed in a permit to appropriate water for a beneficial use to a point of diversion that is located downstream and is an existing approved intake structure with capacity to transport the additional diversion, if the ownership, purpose of use, season of use, and place of use of the permit remain the same.

This

section may not be construed as limiting in any manner whatsoever other authorities of the department under RCW 90.03.380 or other changes that may be approved under RCW 90.03.380 under authorities existing before July 25, 1999. (Emphasis added.) The Legislature has thus acknowledged our reading of RCW 90.03.380, created exceptions to the rule that inchoate surface water rights are not subject to change in point of diversion, and emphasized that no other change may be made if the water has not been applied to a beneficial use.

Additionally, while the Legislature enacted these two statutes subsequent to Okanogan Wilderness League, it did not amend RCW 90.03.380 to allow for a change in point of diversion where inchoate water rights are concerned. Finally, in support of its

interpretation of RCW 90.03.380, the District claims that it is likely that a change in point of diversion may be necessary in order to fully develop a water right, reasoning that engineering and other considerations will result in changes in some of the details relating to the best plans for use of a water right.

However, a surface water right, involving as it does withdrawal from a visible source, does not present the engineering and planning difficulties that groundwater withdrawal may present, and this may be one distinction underlying the difference in the surface water and groundwater change statutes vis-a-vis inchoate rights. We conclude, as we did in Okanogan Wilderness League and R.D. Merrill, that RCW 90.03.380 requires that water must have been applied to beneficial use before a change in point of diversion is authorized under RCW 90.03.380.

We uphold Ecology’s denial of the change application for the 1980 inchoate right. The Board’s grant of

summary judgment in favor of Ecology on this issue is affirmed. B. Tentative Determinations The District maintains that neither Ecology nor the Board has authority to “adjudicate” the District’s water rights and determine they had been abandoned when deciding whether an application for change in point of diversion should be granted. We adhere to precedent on this issue. It is true that neither Ecology nor the Board has the authority to adjudicate water rights. Rettkowski v. Dep’t of Ecology, 122 Wn.2d 219, 858 P.2d 232 (1993).

However, this court has held that Ecology is required to tentatively determine the existence of a water right before it can approve a change in point of diversion of water under that right. Okanogan Wilderness League, 133 Wn.2d at 778-79; R.D. Merrill, 137 Wn.2d at 127. This is because RCW 90.03.380 authorizes a change in point of diversion only where water has been applied to beneficial use, and only where the change will not cause detriment or injury to existing rights. RCW 90.03.380; see Okanogan Wilderness League, 133 Wn.2d at 777-78; R.D. Merrill, 137 Wn.2d at 125-26.

Therefore, quantification of the right is necessary before a change in point of diversion may be approved. Okanogan Wilderness League, 133 Wn.2d at 779. “If a right has not been beneficially used to its full extent, or if the right has been abandoned, then issuance of a certificaté of change, in the amount of the original right, could cause detriment or injury to other rights.” Id. Ecology may therefore deny an application for a change if it determines that the water right has been abandoned or relinquished.

However, in light of the fact that Ecology does not have the right to finally adjudicate water rights, its tentative determination as to whether a right has been abandoned or relinquished cannot be a final determination of the validity of the water right. Id. Ecology has authority to tentatively determine whether a water right has been abandoned or relinquished when acting on an application for a change in point of diversion under RCW 90.03.380, and the Board may also do so when reviewing action on a change application. The Board’s

summary judgment ruling on this issue is affirmed. C. Public Interest With regard to the Í907 110 cfs water right, the Board reversed Ecology’s finding that the right had been abandoned, but remanded this matter so that Ecology could decide whether approval of the change in point of diversion would be contrary to the public interest in light of the § 401 bypass flow conditions. The District contends that the Board erred in concluding that Ecology could deny an application for a change in point of diversion of water under a “public interest” standard. We agree.

Initially, the reasons for the Board’s decision do not support its conclusion. The Board reasoned that this court held that Ecology has an obligation to consider the public interest as it may have evolved since the time of issuance of an original water right certificate. The case upon which the Board relied, Theodoratus, 135 Wn.2d 582, is inapposite.

There, the court noted that under RCW 90.03.320, Ecology must consider the good faith of the applicant and the public interests when deciding whether to extend the time for completion of a project and application of water to beneficial use, and may condition any extension to satisfy any public interest concerns that arise. Theodoratus, 135 Wn.2d at 597. This is because RCW 90.03.320 expressly requires consideration of public interests in such circumstances. Theodoratus does not support the Board’s conclusion as to RCW 90.03.380, which does not contain such authorization.

The Board also relied on the fact that the groundwater code allows for consideration of the public interest when acting on a change application. Again, however, the groundwater statute affirmatively requires consideration of the public interest in such circumstances. RCW 90.44.100 (requiring findings as prescribed in the case of an original application; see RCW 90.03.290 (incorporated by RCW 90.44.060)). RCW 90.03.290, concerning applications for new permits to appropriate surface waters, expressly requires Ecology to consider the public interest when determining whether to issue a permit.

RCW 90.03.380, the surface water change statute, provides, in contrast, that a change in point of diversion may be granted if the change can be made “without detriment or injury to existing rights,” and, as noted, the water must have been put to beneficial use. Okanogan Wilderness League, 133 Wn.2d at 777-78. The statute’s meaning appears plain as to what prerequisites must be met in order to obtain a change in point of diversion, and consideration of the public interest is not required. See State v.

J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001) (where statute’s meaning is plain, court gives effect to that meaning). However, Ecology cites other statutes that it says gives it authority to consider the public interest when acting on a change application. Ecology maintains that while there is no express language in RCW 90.03.380 concerning a public interest test, Ecology has authority derived from other statutes to consider the public interest.

Ecology points to RCW 90.03.005 (policy of the state to promote the use of the public waters to obtain maximum net benefits), and RCW 90.54.020(2) and (10) (in allocation of waters among potential uses and users, the securing of maximum net benefits is directed; expressions of the public interest will be sought at all stages of water planning and allocation). Ecology urges that we read these statutes together with RCW 90.03.380 and harmonize all the statutes. These statutes do not provide the authorization Ecology claims.

First, when an applicant originally seeks to withdraw the public waters, the public interest is a necessary part of the determination to issue a permit to withdraw water. RCW 90.03.290. Therefore, at the point in time that an allocation of public waters is made, the public interest is considered, furthering the policy in RCW 90.03.005 and RCW 90.54.020. However, when an application for change under RCW 90.03.380 is made, the allocation of public waters has already occurred, and the right involved is a perfected water right.

Second, even if any question remained, principles of statutory construction reinforce our conclusion. As noted, the statute governing applications for new water rights, RCW 90.03.290, and the statute permitting extensions of time to complete projects and put beneficial water to use, RCW 90.03.320, both provide for consideration of the public interest, as does the groundwater change statute, RCW 90.44.100. The presence of the “public interest” requirement in these other statutes and the omission of the requirement in RCW 90.03.380 indicate a difference in legislative intent.

Clallam County Deputy Sheriff’s Guild, 92 Wn.2d at 851; State ex rel. Bell, 196 Wash. at 433; Hubbard, 106 Wn. App. at 153. Because the Legislature omitted consideration of the public interest from RCW 90.03.380 where it included such a requirement in other closely related statutes, we conclude that legislative intent is clear that a “public interest” test is not a proper consideration when Ecology acts on a change application under RCW 90.03.380.

In addition, RCW 90.03.380(1) directs that if the water has been beneficially used, and “[i]f it shall appear that. . . such change 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[.]” (Emphasis added.) Use of the word “shall” in this statutory context indicates that Ecology must permit the change if the statutory prerequisites are met. See Cazzanigi v. Gen. Elec. Credit Corp., 132 Wn.2d 433, 443, 938 P.2d 819 (1997).

Ecology advances public policy arguments in favor of public interest review when a change application is made. In particular, Ecology posits that one could essentially avoid public interest review by applying for a permit to appropriate water, undergoing public interest review, obtaining a water right, and then seeking to change it without further public interest review. We recognize this may be a legitimate concern, but believe the answer lies in persuading the Legislature to amend the change statute.

As one of the amici curiae point out, several western states have change statutes expressly requiring consideration of the public interest when action is taken on an application for a change or transfer of rights. Ecology does not have authority to consider the public interest when deciding whether to grant an application for a change in point of diversion of water under RCW 90.03.380. The Board’s grant of

summary judgment in favor of Ecology on this issue is reversed. II. Abandonment Ecology denied the District’s application for a change in the point of diversion of water under the 1907 water right on the ground that it had been abandoned. The Board ruled that the District did not abandon the right, and remanded the application to Ecology. Ecology maintains the Board erred in concluding the 1907 110 cfs right was not abandoned.

As explained, in order to determine whether a change application may be granted under RCW 90.03.380, Ecology must tentatively quantify the right in order to determine whether the right qualifies for a change. Okanogan Wilderness League, 133 Wn.2d at 778-79. If the right has been extinguished through relinquishment or abandonment, it is not subject to a certificate of change. Id. Abandonment is a common law doctrine recognized in this state’s decisional law. See, e.g., Okanogan Wilderness League, 133 Wn.2d at 781-82, 784; R.D. Merrill, 137 Wn.2d at 126-27; Jensen v.

Dep’t of Ecology, 102 Wn.2d 109, 685 P.2d 1068 (1984); Miller v. Wheeler, 54 Wash. 429, 103 P. 641 (1909). While, as we noted in Okanogan Wilderness League, 133 Wn.2d at 784, the court in dicta in Department of Ecology v. Acquavella, 131 Wn.2d 746, 757-58, 935 P.2d 595 (1997) said that RCW 90.14.130-.180 codifies the common law of abandonment, that is not the case. Statutory forfeiture does not require intent to abandon, as does abandonment. Thus, the statutes do not codify the common law doctrine. Moreover, some of the statutes in

chapter 90.14 RCW expressly acknowledge abandonment as well as statutory forfeiture. RCW 90.14.160, .170, and .180 each refer to both abandonment and statutory forfeiture for nonuse for a five-year period. RCW 90.14.180, in particular, expressly recognizes abandonment, as opposed to statutory forfeiture for five years’ nonuse, in connection with any appropriation perfected under the surface and ground water codes. RCW 90.14.160 refers to both as to any water right acquired through appropriation prior to enactment of the water code, or by custom or general adjudication.

Thus, to the extent any question may remain following our decision in Okanogan Wilderness League, 133 Wn.2d 769, as to whether the common law abandonment doctrine remains viable after 1967, we take this opportunity to put the matter to rest. The common law doctrine of abandonment still exists as part of this state’s water law. Our decisions so hold, and the Legislature has clearly not abolished the doctrine; rather it has expressly recognized it.

Abandonment is, as indicated, “the intentional relinquishment of a water right.” Okanogan Wilderness League, 133 Wn.2d at 781 (citing Jensen, 102 Wn.2d at 115; Miller, 54 Wash. at 435). Intent is determined according to the conduct of the parties. Okanogan Wilderness League, 133 Wn.2d at 781. “The burden of proof of abandonment is on the party alleging abandonment.” Id. Nonuse alone does not constitute abandonment. Id. (citing A. Dan Tarlock, Law of Water Rights and Resources § 5.18[1], at 5-106 (1996)).

Nonuse is, however, 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 water right holder to explain reasons for the nonuse. Okanogan Wilderness League, 133 Wn.2d at 781, 782-83. Here, Ecology contends that there has been a long period of nonuse raising the presumption of intent to abandon. Even if we agreed, we would conclude that the District has not abandoned its 1907 water right. As noted, water under this right was used to generate power until 1956.

While it is true that in 1956 a portion of the flume collapsed, and the District thereafter decommissioned the project insofar as power production was concerned, the District continued to engage in studies, acquired and changed water rights for purposes of power production, and tried to develop projects for hydroelectric power production. The District began feasibility studies in 1961, which led to possible new projects and to the District’s application for a new federal license in 1965.

In connection with its proposed new project, it applied for and obtained additional water rights and a change in point of diversion of its 1907 right. In 1966, Ecology approved a reservoir permit for the proposed project. Although the District concluded by 1969 that the project was not feasible after all, its efforts to that point do not show intent to abandon its water rights. From 1978 to 1984, the District collaborated on another proposed project, with a contract to sell the power generated to another power company. This proposal, too, fell through.

While the District did not pursue plans for another project until it began the process for the present one, it did engage in a number of engineering studies in the meantime. In 1980, it applied for a supplementary water right for future development of the Sullivan Creek project. The District also continued to use its concomitant storage right. Further, the District paid the annual state hydroelectric licensing fees in connection with its 1907 water right.

Although, as Ecology points out, the nongenerating license originally issued to the District included language that indicated the Sullivan Creek project had been abandoned, the evidentiary force of this is diluted by the fact that the license also contemplated that generation of hydroelectric power utilizing the Sullivan Creek Project would be reestablished when feasible. Moreover, in 1959, the District requested and obtained an amendment to the license to make clear that it intended to keep its water right for use in power production.

Under these facts as a whole, which are not disputed by Ecology, we conclude that the District has established that it did not intend to abandon its 1907 water right. Ecology argues, though, that the facts show only speculative intent to use water at an undetermined point in the future. See Thorp v.

McBride, 75 Wash. 466, 135 P. 228 (1913) (claim that water would be used in the future for irrigation, mining, domestic and power completely speculative); In re Clark Fork River Drainage Area, 274 Mont. 340, 908 P.2d 1353 (1995) (50 years of nonuse; only reason advanced to show no intent to abandon was lack of economic viability of mining in the area, where water claimed was for mining purposes); S.E. Colo. Water Conservancy Dist. v. Twin Lakes Assocs., 770 P.2d 1231 (Colo. 1989). Ecology also cites City & County of Denver ex rel. Board of Water Commissioners v.

Snake River Water District, 788 P.2d 772 (Colo. 1990), where the court found the presumption of abandonment raised by a long period of nonuse of water right by a company that purchased a nonoperating power plant and its associated water right, and rejected the argument that no intent to abandon could be found because the owner had sold small portions of the water right on two occasions during a 29-year period.

Ecology further maintains that the evidence shows that the District’s only intent when purchasing the power plant was to utilize the storage rights to release water for downstream hydroelectric production, and that it has admitted on a number of occasions that it abandoned or terminated the project. Ecology maintains this case is more compelling on the issue of abandonment than Okanogan Wilderness League. Ecology says that feasibility studies do not rebut the presumption of intent to abandon, relying on R.D.

Merrill by analogy, that maintenance of the storage component of the 1907 right is completely unrelated to the diversionary right, and that the fact that the District paid hydroelectric licensing fees is not sufficient to rebut the presumption of abandonment, particularly where the District paid the fees for an undeveloped hydroelectric project. None of the cases relied upon by Ecology has a similar totality of facts to those that occur in this case. The District engaged in repeated and ongoing attempts to come up with a feasible hydroelectric project.

It did not simply wait until economic conditions improved or future events occurred that provided uses for water, as the claimants in Thorp and In re Clark Fork River Drainage did. A review of City & County of Denver shows no similar efforts to those made here and, as the Board noted, the case actually supports the proposition that attempts to sell a water right are evidence of intent not to abandon the right. City & County of Denver, 788 P.2d at 778. Here, as the Board also observed, the District engaged in attempts to develop and market a power project.

Okanogan Wilderness League is clearly distinguishable, as the water right holder there offered a single, invalid reason for nonuse of the water right at issue. R.D. Merrill’s discussion of feasibility studies is premised on specific statutory language respecting an exception to statutory forfeiture, which is tangentially relevant here, at best. In this case, the District’s storage and diversionary rights are too closely related for us to conclude that maintenance of the storage right has absolutely no relevance on the question of abandonment.

Finally, while payment of licensing fees for an undeveloped project might be insufficient, alone, to rebut a presumption of abandonment, it is but one factor to be considered. The record as a whole shows that the District has met its burden to rebut any presumption of abandonment. Ecology improperly denied the application for a change in point of diversion of the 1907 water right based on abandonment. The Board is affirmed on this issue. III. Statutory Forfeiture; RCW 90.16.060 Ecology also denied the District’s application for a change of point of diversion on the basis that under

chapter 90.14 RCW the District relinquished most of its 440 cfs under its 1980 permit because the right was unused for over five years. The Board reversed. As Ecology points out, this basis for denial of a change in point of diversion is mooted by our holding that an inchoate right is not subject to change under RCW 90.03.380. In any event, the Board’s decision is correct. First, RCW 90.14.150 provides that nothing in

chapter 90.14 RCW “shall be construed to affect any rights or privileges arising from any permit to withdraw public waters or any application for such permit, but the department of ecology shall grant extensions of time to the holder of a preliminary permit only as provided by RCW 90.03.290.” Thus, the Legislature has plainly made statutory forfeiture inapplicable to unperfected water rights. Ecology maintains, though, that RCW 90.14.150 must be harmonized with RCW 90.14.140(2) and RCW 90.16.060. We will not harmonize RCW 90.14.140(2) with RCW 90.14.150 where the latter statute plainly states that

chapter 90.14 RCW does not apply to affect rights under a permit. Were we to do otherwise, it would be in blatant disregard of expressed legislative intent. However, there remains a question whether the right has been abandoned under the provisions of RCW 90.16.060. The Board granted

summary judgment to the District on the issue of whether it abandoned its water rights for failure to timely pay the annual hydroelectric power fees to Ecology. The Board stated that there was no genuine issue of material fact that the District inadvertently failed to pay a portion of its annual licensing fees for hydroelectric projects under RCW 90.16.060 from 1986 to 1993, and that the District had established that the missed payments were the result of a clerical error. The late fees and penalties were paid in 1998. From 1992 forward, the correct fees were paid. Pub. Util. Dist. No. 1 of Pend Oreille County v.

Dep’t of Ecology, PCHB Orders Nos. 97-177, 98-043, and 98-044 (Wash. Oct. 15, 1998) (Am. Summ. J. & Order, Factual Background XI, XXVII). RCW 90.16.050 and RCW 90.16.060 require the filing of annual statements showing the extent of claims for power development and the payment of annual licensing fees. Ecology argues that the District failed to claim the full 440 cfs right for power development and failed to pay licensing fees, and that under RCW 90.16.060 this is conclusive evidence of abandonment of the water right used or proposed to be used for power development.

We do not read RCW 90.16.060 as providing for such abandonment. First, as to payment of fees, the statute states that “the failure to file statement and pay the fees, as herein required, for any power site or claim of power rights on account of riparian ownership within two years after June 12, 1929, shall be conclusive evidence of abandonment.” RCW 90.16.060 (emphasis added). The statute was enacted in 1929 and, evidently, the quoted language was intended to assure that power developers complied with the new act’s provisions in a timely fashion.

Nothing in the statute indicates that the abandonment provision applies to the failure to pay fees after 1931. Moreover, the rest of the statute demonstrates that it does not. RCW 90.16.060 also provides that [s]hould any claimant fail or neglect to file such statement within the time specified, or fail or neglect to pay such fees within the time specified, the fees due and payable shall be at the

schedule rates set out in RCW 90.16.050, increased twenty-five percent, and the state shall have preference lien therefor, with interest at the rate of ten percent per annum from the date of delinquency!.] We do not believe the Legislature intended that a water right would be deemed conclusively abandoned, while at the same time allowing the late payment of fees relating to that right. Nor do we understand why a claimant would pay late fees once the water right necessary for power production was abandoned.

By allowing the late payment of fees, with penalty and interest, the Legislature plainly contemplated that the statement could be filed and licensing fees could be paid late without abandoning the water rights involved. We would have to read the “June 12,1929” date out of the statute in order to read the statute as Ecology would have us do. We decline to do so. We also decline to render the language allowing the late payment of fees superfluous. See Svendsen v. Stock, 143 Wn.2d 546, 555, 23 P.3d 455 (2001) (statutes should not be construed to render any portion superfluous).

We note that our decision does not leave a void in the law. Common law abandonment principles and statutory forfeiture (and its exceptions) may apply, and other statutes govern requirements for perfection of a water right, including the diligence required in perfecting permitted water rights. As to the failure to file the annual statement claiming the full 440 cfs, the statute plainly ties the filing of the annual statement and payment of licensing fees together.

By allowing the later payment of the licensing fees where they have not been paid, the statute contemplates that the claimant may correct the failure or neglect to pay. We believe that it necessarily follows that the claimant may also correct the statement of the amount of water under the claimed water rights. Otherwise, the right to pay late fees, as the statute allows, would be meaningless.

We conclude that the District has not abandoned any portion of its 440 cfs inchoate right under RCW 90.16.060 by failing to timely pay licensing fees and claim the full extent of its water right, because it lawfully paid its fees, together with penalty and interest, as permitted by the statute. Accordingly, the Board’s grant of

summary judgment in favor of the District on this issue is affirmed. IV. Clean Water Act:

Section 401 Water Quality Certification The District maintains that the Board erred in ruling that Ecology has authority to impose conditions on the water quality certification for the Sullivan Creek Project which require that the District leave specified minimum flows in the creek. The District maintains that contrary to the Board’s conclusion, Public Utility District No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994) (Elkhorn II), does not control this issue because, unlike the circumstances there, the District has existing water rights.

The District also contends that Ecology does not have authority to limit and restrict existing water rights as part of a water quality certification. Further, the District contends, Ecology may not establish minimum stream flows as a condition to a water quality certification without complying with procedures set forth in chapters 90.22 and 90.54 RCW. Ecology, on the other hand, maintains it has authority to require the conditions in order for the certification to comply with federal and state water quality standards. Both Ecology and the Center for Environmental Law and Policy argue that Elkhorn II controls.

The issue of Ecology’s authority under the Federal Water Pollution Control Act, known as the Clean Water Act, 33 U.S.C. §§ 1251-1387, and under the state Water Pollution Control Act,

chapter 90.48 RCW, is a matter of statutory construction that we review de novo. The Clean Water Act is a “comprehensive water quality statute designed to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’ ” Elkhorn II, 511 U.S. at 704 (quoting 33 U.S.C. § 1251(a)). “The act also seeks to attain ‘water quality which provides for the protection and propagation of fish, shellfish, and wildlife.’ ” Id. at 704 (quoting 33 U.S.C. § 1251(a)(2)).

Under § 303 of the Clean Water Act, each state must establish, subject to federal approval, comprehensive water quality standards setting water quality goals for intrastate waters. 33 U.S.C. §§ 1311(b)(1)(C), 1313. 33 U.S.C. § 1313(c)(2)(

A) provides that a state water quality standard “shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” Further, state water quality standards must “protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational” and other purposes. Id.

Section 303 also contains an antidegradation policy, ensuring that state standards are adequate to maintain existing beneficial uses of navigable waters and prevent their further degradation. Elkhorn II, 511 U.S. at 705. Thus, state water quality standards must “include ‘a statewide antidegradation policy to ensure that ‘[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.’ ” Elkhorn II, 511 U.S. 705 (quoting 40 C.F.R. § 131.12 (1993)). Under the Clean Water Act, states may impose more stringent water quality controls.

Elkhorn II, 511 U.S. at 705 (citing 33 U.S.C. §§ 1311(b)(1)(C), 1370; 40 C.F.R. § 131.4(a) (1993)). Pursuant to RCW 90.48.260, Ecology is the designated state agency for purposes of securing the benefits of and meeting the requirements of the Clean Water Act.

RCW 90.48.260 states that [t]he department of ecology is hereby designated as the State Water Pollution Control Agency for all purposes of the federal clean water act. . . and is hereby authorized to participate fully in the programs of the act as well as to take all action necessary to secure to the state the benefits and to meet the requirements of that act.[] In accord with this grant of authority, and as required by the Clean Water Act, Ecology promulgated comprehensive, specific water quality standards for regulating state navigable waters, as well as a statewide antidegradation policy.

These provisions, set forth in the administrative code, were reviewed and approved by the federal Environmental Protection Agency as required by the Clean Water Act. Elkhorn II, 511 U.S. at 707 (citing 33 U.S.C. § 1313(c)(3); 42 Fed. Reg. 56,792 (1977)). The State’s antidegradation policy is presently set forth in WAC 173-201A-070, which provides, among other things, that “[e]xisting beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses shall be allowed.” WAC 173-201A-070(1).

Ecology inventoried the state waters and placed them within five categories. WAC 173-201A-03Q. Sullivan Creek is classified as AA, extraordinary. Designated beneficial uses include salmonid migration, rearing, spawning and harvesting, wildlife habitat, recreation, and commerce and navigation. WAC 173-201A-030. Ecology acted to impose the instream flow conditions in this case to ensure that designated uses listed in this standard would not be degraded by operation of the Sullivan Creek project, in accord with § 303 of the Clean Water Act.

Under the Clean Water Act, the state is required to enforce water quality standards on intrastate waters. 33 U.S.C. § 1313(d)(4)(B). In addition, the state is responsible for providing water quality certificates under § 401 of the Clean Water Act. 33 U.S.C. § 1341. These duties fall to Ecology under RCW 90.48.260. Generally, under § 401, any applicant for a federal license must obtain a state water quality certificate if the applicant’s activities may result in discharge into intrastate waters. 33 U.S.C. § 1341.

The proposed Sullivan Creek project requires a license from the Federal Energy Regulatory Commission, and will result in discharge of diverted water back into Sullivan Creek. Accordingly, the project requires a § 401 state water quality certification.

Section 401(

d) requires that [a]ny certification ... shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under

section 1311 or 1312 of this title . . . and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section. 33 U.S.C. § 1341(d). In Department of Ecology v. Public Utility District No. 1 of Jefferson County, 121 Wn.2d 179, 849 P.2d 646 (1993) (Elkhorn I) (the decision reviewed in Elkhorn ID, this court addressed the propriety of conditions in a § 401(

d) water quality certification that required that the applicants maintain certain minimum instream flows in the Dosewallips River, also classified as AA. The applicants there were a city and a local utility district that wanted to build a dam, and applied for a hydroelectric license from the Federal Energy Regulatory Commission. A § 401 water quality certification was therefore required.

The proposed site would reduce streamflow on a stretch of the river between the initial diversion and the place downstream where the water would be returned—the bypass reach—and would adversely affect the salmonid population in that portion of the river. This court upheld the streamflow conditions imposed by Ecology, reasoning that they were necessary to assure compliance with state water quality standards prohibiting the degradation of the state’s waters, and specific standards prohibiting degradation of fish habitat and spawning— designated uses for the Dosewallips.

The United States Supreme Court affirmed in Elkhorn II. The Court first held that once the threshold condition of existence of a discharge exists, then § 401(

d) authorizes additional conditions and limitations on the applicant’s activities as a whole. Elkhorn II, 511 U.S. at 711-12. The Court then determined that ensuring compliance with § 303 is a proper function of the § 401 certification. Id. at 712-13. Therefore, the Court concluded, state water quality standards adopted pursuant to § 303 are among the limitations that a state may use to ensure compliance in the § 401 certification process. Id. at 713.

Moreover, the Court held, “limitations necessary to ensure compliance with state water quality standards” are also permitted by § 401(d)’s reference to “ 'any other appropriate requirement of State law.’ ” Elkhorn II, 511 U.S. at 713-14. The Court then turned to the question whether a minimum flow condition is a limitation necessary to ensure compliance with state water quality standards or any other appropriate requirement of state law, concluding that it is. The Court rejected the argument that § 401(

d) conditions could be based only on specific chemical or numeric criteria. The Court reasoned that criteria can include broad, narrative terms, and that this state’s water quality standards applicable to the Dosewallips are of this type. Elkhorn II, 511 U.S. at 715-16. The Court upheld the minimum streamflow conditions as conditions necessary to meet the state’s requirements that activities comport with designated uses—fish spawning and habitat in the Dosewallips. The Court also held that the minimum flow conditions were necessary to comport with antidegradation policies.

The Court observed: [The Environmental Protection Agency] has promulgated regulations implementing § 303’s antidegradation policy, a phrase that is not defined elsewhere in the [Clean Water] Act. These regulations require States to “develop and adopt a statewide antidegradation policy and identify the methods for implementing such a policy.” 40 CFR § 131.12 (1993).

These “implementation methods shall, at a minimum, be consistent with the . . . [ejxisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.” Ibid. [The Environmental Protection Agency] has explained that under its antidegradation regulation, “no activity is allowable . . . which could partially or completely eliminate any existing use.” . . .

Thus, States must implement their antidegradation policy in a manner “consistent” with existing uses of the stream.... [Washington] State’s minimum stream flow condition is a proper application of the state and federal antidegradation regulations, as it ensures that an “[e]xisting instream water us[e]” will be “maintained and protected.” 40 CFK 131.12(a)(1) (1993). Elkhorn II, 511 U.S. at 718-19 (citation omitted). Thus, the minimum instream flow conditions were authorized under both state and federal antidegradation regulations promulgated under authority of the Clean Water Act.

As to the argument that the Clean Water Act is concerned only with quality, and not quantity, the Court termed the distinction an “artificial” one, noting that in many cases water quantity is closely related to water quality. Id. at 719. That is, “a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery.” Id. Moreover, the Court held, the definition of “pollution” in the Clean Water Act encompasses the effects of reduced water quantity.

Id. 33 U.S.C. § 1362(19) defines “pollution” as “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.” Elkhorn II thus holds that a state may impose minimum instream flow conditions as part of § 401 water quality certification where necessary to enforce a designated use and conform to state and federal antidegradation policies. The District contends, however, that Elkhorn II does not apply here because the District has existing water rights, unlike the applicants in Elkhorn II.

The District argues that in light of § 101(g) (33 U.S.C. § 1251(g)) and § 510(2) (33 U.S.C. § 1370(2)) of the Clean Water Act, deferring to state law on water allocation, a condition that may affect the quantity of water available to one who holds an existing water right must be authorized by state law. There is no such state authorization, in the District’s view. The District also contends that minimum flow requirements cannot be imposed without compliance with procedures set out in chapters 90.22 and 90.54 RCW. We do not agree that Elkhorn II is distinguishable.

In Elkhorn II, the Court rejected the argument that § 101(

g) and § 510(2) of the Clean Water Act excluded regulation of water quantity from the Clean Water Act. The Court said that these sections give the states the authority to allocate water rights as between users, but “they do not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation.” Elkhorn II, 511 U.S. at 720. The Court also said that a § 401 certification “merely determines the nature of the use to which that proprietary right may be put under the Clean Water Act” if and when a water right was obtained by the applicants in the case.

Elkhorn II, 511 U.S. at 721. The Court said that its view was supported by legislative history of a 1977 amendment to the Clean Water Act that added § 101(g). The District, maintains, however, that the court’s conclusion is dicta, because there were no existing water rights involved in Elkhorn II.

Section 101(

g) provides: It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this

chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources. 33 U.S.C. § 1251(g). Section 510(2) states that nothing in the Clean Water Act shall “be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters ... of such States.” 33 U.S.C. § 1370(2).

The District reasons that under § 101(g), conditions affecting the right to use water under a state water right, i.e., conditions relating to water quantity, may be imposed only if allowed under state law. Thus, in the District’s view, a condition imposed pursuant to the Clean Water Act alone, without additional state authorizing legislation, may not be imposed if it limits the amount of water a water right holder may use under an existing water right. We are convinced that § 101(

g) and § 510(2) do not preclude legitimate regulation under the Clean Water Act that affects existing water rights. As noted, the Court in Elkhorn II referred to the legislative history of § 101(g), also known as the Wallop Amendment. Senator Wallop’s statements, quoted by the Court, are that “[t]he requirements [of the Act] may incidentally affect individual water rights. ... It is not the purpose of this amendment to prohibit those incidental effects.

It is the purpose of this amendment to insure that State allocation systems are not subverted, and that effects on individual rights, if any, are prompted by legitimate and necessary water quality considerations.” Elkhorn II, 511 U.S. at 721 (quoting Comm, on Public Works, 95th Cong., 2d Sess., 3 Legislative History of the Clean Water Act of 1977, Serial No. 95-14, at 532 (Comm. Print 1978)).

The Wallop Amendment came about as a compromise between the House and the Senate on the jurisdictional reach of § 404 of the Clean Water Act, which concerns permitting for the discharge of dredged or fill material into navigable waters. 33 U.S.C. § 1344. The controversy arose between passage of 1972 amendments to the Federal Water Pollution Control Act and the 1977 Clean Water Act, and involved the propriety of requiring § 404 permits for projects that affected “ ‘waters of the United States,’ as opposed to waters that were traditional^ navigable.” Gregory J. Hobbs, Jr. & Bennett W.

Raley, Water Rights Protection in Water Quality Law, 60 U. Colo. L. Rev. 841, 846 (1989). Among other things, this debate involved the issue of protection of wetlands. Id. Also during this time, the court in Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975) held that the Corps of Engineers, having administrative responsibilities under § 404, had to promulgate regulations concerning all waters of the United States, and not just traditionally navigable waters. Hobbs & Raley, supra, at 846.

Concern arose that farming practices, irrigation, and municipal water projects might be barred or restricted by § 404 permitting jurisdiction. Id. at 847. By 1977, a “standoff’ existed between the House and Senate as to the reach of § 404, and Senators Wallop and Hart were key in a series of compromises that became law—among them, § 101(g). Hobbs & Raley, supra, at 853-54. Senator Wallop explained, in addition to the comments quoted above: Water quality and interstate movement is an acceptable Federal role and influence.

But the States [sic] historic rights to allocate quantity, and establish priority of usage remains inviolate because of this amendment. The Water Pollution Control Act was designed to protect the quality of water and to protect critical wetlands in concert with the various States. In short a responsible Federal role. 123 Cong. Rec. 39,212 (1977) (remarks of Sen. Wallop). The Senator also said that the amendment will reassure the State that it is the policy of Congress that the Clean Water Act will not be used for the purpose of interfering with State water rights systems. . . .

This amendment came immediately after the release of the Issue and Option Papers for the Water Resource Policy Study now being conducted by the Water Resources Council. Several of the options contained in that paper called for the use of Federal water quality legislation to effect Federal purposes that were not strictly related to water quality. Those other purposes might include, but were not limited to, Federal land use planning, plant siting and production planning purposes.

This “State’s jurisdiction” amendment reaffirms that it is the policy of Congress that this act is to be used for water quality purposes only. 123 Cong. Rec. 39,211 (1977). Legitimate water quality measures authorized by this act may at times have some effect on the method of water usage. Water quality standards and their upgrading are legitimate and necessary under this act. The requirements of

section 402 and 404 permits may incidentally affect individual water rights. Management practices developed through State or local 208 planning units may also incidentally affect the use of water under an individual water right. It is not the purpose of this amendment to prohibit those individual effects. . . . This amendment is an attempt to recognize the historic allocation rights contained in State constitutions. It is designed to protect historic rights from mischievous abrogation by those who would use

an act, designed solely to protect water quality and wetlands, for other purposes. It does not interfere with legitimate purposes for which the act was designed. 123 Cong. Rec. 39,212 (1977). As this history shows, § 101(g)’s policy statement does not mean that the Clean Water Act has no applicability where an effect on existing water rights would result from application of the act.

Section 101(

g) is intended to preclude use of the Clean Water Act as a vehicle for federal purposes for which the act was not intended and which could subvert or abrogate state water allocation.

Section 101(

g) expresses the policy that allocation of a state’s water resources is a matter within state jurisdiction. It also has as its purpose that federal agencies must cooperate with state and local agencies in achieving water quality. However, water quality issues under the Clean Water Act, which include, as Elkhorn II holds, water quantity issues, i.e., instream flow levels affecting designated uses, are properly within the scope of the Clean Water Act. Conditions imposed to protect water quality fall within the legitimate purposes for which the Clean Water Act was designed. Courts addressing the impact of § 101(

g) generally conclude, consistent with its history, that it does not preclude legitimate regulation under the Clean Water Act. It has been viewed as a “general policy statement that requires the federal government accommodate state interests in the permit process to the extent possible consistent with the objectives of the regulatory program, but... it is not a blanket immunization of state water rights holders from federal regulation.” A. Dan Tarlock, Law of Water Rights and Resources, § 5:91, at 5-162 (2001). In Riverside Irrigation District v.

Andrews, 758 F.2d 508, 513 (10th Cir. 1985), the court said with regard to § 101(g) “that Congress did not want to interfere any more than necessary with state water management.” National Wildlife Federation v. Gorsuch, 693 F.2d 156, 178 (D.C.Cir.1982). A fair reading of the statute as a whole makes clear that, where both the state’s interest in allocating water and the federal government’s interest in protecting the environment are implicated, Congress intended an accommodation. Such accommodations are best reached in the individual permit process. In United States v.

Akers, 785 F.2d 814 (9th Cir. 1986), a farmer owning wetlands through which a river tributary flowed challenged an order enjoining him from depositing dredged or fill material into certain waters, channels or wetlands, specified by the Corps of Engineers, without a permit (unless a permit was determined to be unnecessary or he did not receive a timely decision on whether a permit was not required). The farmer built a dike across the wetlands, and he argued the dike was an exempt irrigation facility for purposes of § 404’s dredge and fill permit requirements. He also argued that under § 101(

g) the irrigation exemption should be applied so as to avoid impairment or abrogation of his state allocated irrigation rights, which he claimed were rendered virtually meaningless otherwise. The court disagreed, reasoning that “any incidental effect on [the farmer’s] rights to state-allocated water from [the river] is justified because protection of [the wetlands] is the type of legitimate purpose for which the [Clean Water] Act was intended.” Akers, 785 F.2d at 821. See also Water Works & Sewer Bd. v. United States Dep’t of Army, 983 F.

Supp. 1052, 1078 (1997) (policy announced in the Wallop amendment is “that the Corps not make its permitting decisions on the basis of water supply, thereby overruling state law water allocation determinations”). We conclude that § 101(

g) does not prohibit conditioning a § 401 water quality certification on maintenance of specified instream flows necessary to meet the state’s water quality standards promulgated under the Clean Water Act and necessary to protect designated uses, and to meet the federal and state antidegradation policies, regardless of whether the applicant has existing water rights. Nor does § 510(2), which does not contain anything substantive that § 101(

g) does not contain. Accordingly, the decision in Elkhorn II applies here, and requires that we affirm the Board’s decision that Ecology has authority under the Clean Water Act to condition the District’s water quality certificate on maintenance of the specified instream flows. See RCW 90.48.260. Bypass flow requirements as conditions in a water quality certificate do not reflect or establish an applicant’s proprietary right to water, but “merely determines the nature of the use to which that proprietary right may be put under the Clean Water Act.” Elkhorn II, 511 U.S. at 721.

Under the Clean Water Act, reduced stream flow can constitute pollution where it affects the physical or biological integrity of the water, as the Court reasoned in Elkhorn II. Id. at 719; see 33 U.S.C. § 1362(19). Ecology has authority under the Clean Water Act to prevent and control this kind of pollution, as Elkhorn II establishes. Ecology has been granted authority to “take all action necessary to . . . meet” the requirements of the Clean Water Act. RCW 90.48.260.

The bypass flow conditions imposed in this case are “reasonably calculated to protect existing fisheries habitat in Sullivan Creek,” and thus meet water quality standards that include ’’salmonid migration, rearing, spawning, and harvesting” designated uses. PCHB Nos. 97-177, 98-043, and 98-044, at 17 (Aug. 14, 2000) (Am. Final Findings of Fact, Conclusions of Law and Order); see WAC 173-201A-030(2)(b)(iii), -120(6).

We do not agree with the District that under state law Ecology may impose instream flow conditions in a § 401 state water quality certificate only in accordance with procedures in chapters 90.22 and 90.54 RCW for setting minimum instream flows. Two entirely separate spheres of regulation are involved. We are here concerned with Ecology’s authority to regulate water quality under the Clean Water Act. Instream flow conditions in a § 401 certification operate to ensure that a project will not violate lawful water quality standards. They apply only to the individual water right holder.

They do not apply to other water right holders or applicants for water. Moreover, conditions in a § 401 water quality certificate are effective during the term of a federal license, and may be reevaluated or revised when a project is up for relicensing. In contrast, minimum instream flows under the state’s water resources statutes constitute an appropriation, and have a priority date applicable to all water right holders and applicants in a water basin. RCW 90.03.345; Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 80-82, 11 P.3d 726 (2000).

It is for this reason that RCW 90.03.247 requires that “[w]henever an application for a permit to make beneficial use of public waters is approved relating to a stream or other water body for which minimum flows or levels have been adopted and are iri effect at the time of approval, the permit shall be conditioned to protect the levels or flows.” As noted, the state Water Pollution Control Act grants authority to Ecology to take “all action necessary... to meet the requirements” of the Clean Water Act. RCW 90.48.260. There is no restriction in

chapter 90.48 RCW that prohibits Ecology, when carrying out this broad grant of authority, from imposing conditions that may affect an existing water right. This is in sharp contrast to other areas of Ecology’s regulatory authority. See, e.g., RCW 90.03.030; RCW 90.44.040. In this connection, we disagree with the District’s contention that the absence of a savings clause in

chapter 90.48 RCW has no significance. The District says that the state Water Pollution Control Act,

chapter 90.48 RCW, simply authorizes the “discharge” of material into water that causes or tends to cause pollution, and authorizes cooperation with the federal government under the Clean Water Act. The District maintains that the withdrawal and use of water is not the same as the discharge of pollutant(

s) under the state Water Pollution Control Act or the Clean Water Act. Therefore, the District says, neither the Congress nor the Legislature authorized regulation of the use of water under existing water rights. Of course, Elkhorn II clearly holds to the contrary as far as the Clean Water Act is concerned, since it expressly holds that water quantity is not distinguishable from water quality where impact on designated uses is concerned: “reduced stream flow, i.e., diminishment of water quantity, can constitute water pollution.” Elkhorn II, 511 U.S. at 719 (citing 33 U.S.C. § 1362(19)).

As for the state act, we repeat once again that Ecology is authorized to take “all action” necessary to satisfy the Clean Water Act.

We also note that RCW 90.48.030 states that “[t]he department shall have the jurisdiction to control and prevent the pollution of streams, lakes, rivers, ponds, inland waters, salt waters, water courses, and other surface and underground waters of the state of Washington.” ’’Pollution” is defined broadly as such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.

RCW 90.48.020. This definition is, if anything, broader than the definition of “pollution” in the Clean Water Act. We similarly view the Water Pollution Control Act as encompassing man-induced reduction of water quantity as pollution where it has the negative effects outlined in RCW 90.48.020. Accordingly, the District’s argument respecting the lack of a savings clause in

chapter 90.48 RCW is without merit. Finally, on this issue, we note that the Legislature has in fact expressly recognized Ecology’s authority to set instream flow conditions in a state water quality certification under § 401 of the Clean Water Act.

Chapter 90.82 RCW concerns cooperative watershed planning, and RCW 90.82.080 pertains to minimum instream flow components of such planning. According to RCW 90.82.020(3), “minimum instream flow” means a minimum flow under chapters 90.03 and 90.22 RCW, or a base flow under

chapter 90.54 RCW. However, RCW 90.82.080(4) expressly provides that nothing in the

chapter (a) [a]ffects the department’s authority to establish flow requirements or other conditions under RCW 90.48.260 or the federal clean water act (33 U.S.C. Sec. 1251 et. seq.) for the licensing or relicensing of a hydroelectric power project under the federal power act (16 U.S.C. Sec. 791 et seq.); or (

b) affects or impairs existing instream flow requirements and other conditions in a current license for a hydroelectric power project licensed under the federal power act. Thus, the Legislature has distinguished between minimum instream flows under chapters 90.03, 90.22, and 90.54 RCW, and instream flow conditions in a § 401 certification under the Clean Water Act and the Water Pollution Control Act,

chapter 90.48 RCW. We hold that Ecology has authority to impose instream flow conditions in a state water quality certification under § 401 of the Clean Water Act regardless of whether the applicant for the federal license has existing water rights. The Board’s

summary judgment in favor of Ecology on this issue is affirmed. CONCLUSION We hold that a water quality certification under § 401 of the Clean Water Act may be conditioned on maintenance of bypass flows in order to meet state and federal water quality standards ensuring that waters will not be degraded so as to interfere with or injure existing beneficial uses, and may do so where such conditions affect existing water rights.

We hold that a change in point of diversion is not allowed under RCW 90.03.380 where the water right sought to be changed is an inchoate right, and that Ecology is not authorized to consider the public interest when deciding whether to grant an application for a change under the statute. We hold that the District’s water rights were not abandoned or statutorily relinquished. For the reasons stated, the Board’s decisions are affirmed in part and reversed in part. Smith, Johnson, Ireland, Bridge, Chambers, and Owens, JJ., concur.

The certification requires the following instream flows: October 1-March 31 75 cfs April 1-7 100 cfs April 8-14 140 cfs April 15-21 160 cfs April 22-30 200 cfs May 1-July 31 200 cfs August 1-September 1 125 cfs In re Certification to Pub. Util. Dist. No. 1 of Pend Oreille County, Dep’t of Ecology, Order No. DE 97WQ-E361, at 3 (Wash. Oct. 28, 1997). From May 1 through September 30, the required flows are the lesser of the above flows or the natural flows entering Mill Pond. An inchoate water right is “an incomplete appropriative right in good standing.

It comes into being as the first step provided by law for acquiring an appropriative right is taken. It remains in good standing so long as the requirements of law are being fulfilled. And it matures into an appropriative right on completion of the last step provided by law.” Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 596, 957 P.2d 1241 (1998) (quoting 1 Wells A. Hutchins, Water Rights Laws in the Nineteen Western States 226 (1971)). The District also relies on. In re Water Rights of Ahtanum Creek, 139 Wash. 84, 100, 245 P. 758 (1926) and Offield v.

Ish, 21 Wash. 277, 281, 57 P. 809 (1899) for the proposition that this court has previously affirmed the right to change the point of diversion of an inchoate water right. In both cases, however, the water right holder had perfected water rights. A change in the place of use, point of diversion, purpose of use, or any of these, to enable irrigation of additional land, or to add new uses is allowed provided that there is no increase in the annual consumptive quantity of water used. RCW 90.03.380.

We find it unnecessary to address cases from other jurisdictions that Ecology cites because RCW 90.03.380 is clear that no public interest test applies. In the factual background,

section XI, the Board states the fees were unpaid from 1986 to 1992, while in the factual background,

section XXVIII, the Board states the District inadvertently failed to pay the fees from 1986 to 1993. PCHB No. 97-177 (Am. Summ. J. & Order). The discrepancy does not affect our analysis. The statute then lists certain specific programs that Ecology is authorized to establish and administer. These are not exhaustive of the granted powers. First, the grant is of the power to “take all action necessary” to secure benefits under and meet requirements of the Clean Water Act, indicating broad authority. Further, the statute states, “[t]he powers granted herein include, among others . .. .” RCW 90.48.260.

Use of this language shows intent that the powers listed are not exclusive. Town of Ruston v. City of Tacoma, 90 Wn. App. 75, 84, 951 P.2d 805 (1998); see Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 359, 20 P.3d 921 (2001) (“includes” is a term of expansion). The court additionally found the conditions were necessary to comply with federal water quality requirements, reasoning that man-induced alteration of streamflow levels is “pollution” within the meaning of the Clean Water Act. Dep’t of Ecology v. Pub. Util. Dist. No. 1, 121 Wn.2d 179, 187, 849 P.2d 646 (1993) (Elkhorn I).

The court also held that the conditions appropriately carried out RCW 90.54.020(3)(a), providing that “ ‘[plerennial rivers and streams of the state shall be retained with base flows necessary to provide for the preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values.’ ” Elkhorn 1,121 Wn.2d at 189 (quoting RCW 90.54.020(3)(a).

The court determined that this state statute fell within § 401(d)’s reference to “any other appropriate requirement of State law,” which did not, in the court’s view, limit conditions only to those necessary to carry out state water quality standards. Elkhorn I, 121 Wn.2d at 189-90. The Court did not speculate as to whether any additional laws might fall within this reference, thus leaving unanswered the question whether, as this court had held, RCW 90.54.020 was such a state law. The Court also said that 33 U.S.C. § 1314(

f) expressly recognizes that water pollution, may result from changes in movement, flow, or circulation, from dams or other diversions, thus also showing congressional concern with the physical and biological integrity of water. Elkhorn II, 511 U.S. at 719-20. As the Court said in Elkhorn II, the language in § 101(

g) gives a state the authority to allocate water rights, and thus the Court found it “peculiar” that the applicants in Elkhorn II argued that it prevented the state from regulating stream flow. Pub. Util. Dist. No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700, 720, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994) (Elkhorn II). As the Ninth Circuit noted, the farmer conceded, for purposes of the case, that portions of his property were wetlands subject to permit requirements, and exemptions, of § 404 of the Clean Water Act. United States v. Akers, 785 F.2d 814, 816 n.1 (9th Cir. 1986).

We note that additional issues are not before us. Although the District has suggested constitutional infirmities in the § 401 certification, the Board has no jurisdiction over such issues, see RCW 43.21B.110; see also Inland Foundry Co. v. Spokane County Air Pollu

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