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Show 102 THE RIPARIAN DOCTRINE In addition to the fact that unused riparian rights may be limited (as in Washington) or cut off or restricted as of a certain date or time (as in Oregon, Kansas, South Dakota, and Texas, discussed above), the riparian right, as limited, may be subsequently lost in Washington and Kansas if it is unexercised for a certain period of time. Under Washington legislation enacted in 1967, anyone entitled to divert or withdraw water by virtue of his ownership of land abutting a stream, lake or watercourse "who abandons the same, or who voluntarily fails, without sufficient cause," to beneficially use all or any part of such right for any period of 5 successive years after the act's effective date (July 1, 1967) shall relinquish such right or portion thereof (which shall revert to the State and the affected waters become available for appropriation).527 This legislation has not been construed by the Washington Supreme Court. 310, 313-314, 91 Pac. 968 (1907). See also United States v. Ahtanum In. Dist, 330 Fed. (2d) 897, 904-905 (9th Cir. 1964), rehearing denied, 338 Fed. (2d) 307, certiorari denied, 381 U.S. 924(1965). A number of conjectured alternative meanings of this limitation on riparian rights (which limitation is discussed in chapter 6 at notes 311-313 and in the State summary for Washington in the appendix) are discussed in Corker, C. E., & Roe, C. B., Jr., "Washington's New Water Rights Law-Improvements Needed," 44 Wash. L. Rev. 85, 113-128(1968). With respect to riparian use of navigable waters, see the discussion at note 411 supra. "'Wash. Laws 1967, ch. 233, Rev. Code § 90.14.170 (Supp. 1970). Kans. Stat. Ann. § 82a-701(d) (1969), regarding the restriction date, is discussed earlier under "Cutoff dates" and §§ 82a-703 and -718, regarding forfeiture, are discussed earlier under "Property Characteristics-Severance of Riparian Right From Land-Nonuse of the right-(2) Question of statutory forfeiture," and also in chapter 14. The 1967 Washington legislation, revised in 1969, also requires that anyone using or claiming water rights other than under a permit or certificate from the Department of Ecology shall file a claim, stating the amount used and time, place, and purpose of use, with the department by June 30,1974. Failure to do so shall be conclusively deemed a waiver and relinquishment of the right. Wash. Rev. Code § § 90.14.010-90.14.121. This may present a question for registering unused riparian rights somewhat similar to the question regarding unused riparian rights in Alaska mentioned in chapter 6 at note 228. But in any event, a number of these unused rights might be extinguished for 5 years' nonuse after July 1, 1967, under the statutory provision discussed above, prior to the final June 30, 1974, date for filing water rights claims. The 1967 Washington legislation also stated that "The legislature hereby affirms the rule that no right to withdraw or divert any water shall accrue to any riparian unless said riparian shall have complied with the provisions of law applicable to the appropriation of water." But this provision (critically discussed in Corker & Roe, supra note 526, at 106 et seq.) was repealed in 1969. Laws 1967, ch. 233, § 12, creating Rev. Code § 90.14.120 (Supp. 1970), repealed, Laws 1969, ch. 284, § 23. Alaska's 1966 Water Use Act [Alaska Laws 1966, ch. 50, Stat. § 46.15.010 et seq. (Supp. 1966)] apparently purports to convert any riparian rights to appropriative rights, although the act does not appear to include any procedure for establishing evidence of and preserving unused rights (except where works were under construction on the act's effective date). At any rate, the act apparently contemplates that its statutory forfeiture provision applicable to appropriative rights may apply to any |
