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Show 776 WASHINGTON quished.146 Sufficient cause which will prevent a loss of the right is a non-use that occurs as a result of: (1) Drought, or other unavailability of water; (2) Active service in the Armed Forces of the United States during mili- tary crisis; (3) Nonvoluntary service in the Armed Forces of the United States; (4) The operation of legal proceedings; (5) Federal laws imposing land or water use restrictions, or acreage limi- tations, or production quotas. Notwithstanding any other provisions of this chapter, there shall be no relinquishment of any water right: (1) If such right is claimed for power development purposes under RCW 90-16 and annual license fees are paid in accordance with ROW 90.16, or (2) If such right is used for a standby or reserve water supply to be used in time of drought or other low flow period so long as withdrawal or diver- sion facilities are maintained in good operating condition for the use of such reserve or standby water supply, or (3) If such right is claimed for a determined future development to take place either within 15 years of the effective date of this act, or the most recent beneficial use of the water right, whichever date is later, or (4) If such right is claimed for muncipal water supply purposes under ROW 90.03, or (5) If such waters are not subject to appropriation under the applicable provisions of ROW 90.40.030 as now or hereafter amended.147 Any decision of the director is subject to judicial review, but his decision in finding that a right has been relinquished is deemed prima facie correct148 B. ABANDONMENT Abandonment is a separate and distinct legal doctrine from for- feiture. Forfeiture results from the non-use of the water right with- out sufficient cause, but abandonment requires an intent to voluntarily give up the right as well as non-use of the water. In one situation, an appropriation right was found to have been lost by abandonment where the court found that there had been a non-use of the right, coupled with an intent to abandon. Both ele- ments must exist and the burden of proving abandonment is on the party asserting it.149 C. ADVERSE "USE A riparian right can be lost to another under the principles of adverse use. However, the person claiming the right of another by adverse possession must show that there was an open, notorious, ex- clusive, adverse use for a continuous period of 10 years.150 The burden of demonstrating an adverse use is upon the person asserting it and the proof must be clear and convincing.151 With regard to appropriative rights the Washington legislature in 1967 provided that no rights to the use of surface or ground water affecting either appropriated or unappropriated water may be ac- quired by prescription or adverse use.152 ""Sec. 90.14.130. "'See. 90.14.140. "s Sec. 90.14.190. "» Sander v. Bull, 76 Wash. 1, 135 Pac. 489 (1913). ™ Smith v. Nechanicky, 123 Wash. 8, 211 Pac. 880 (1923). win re Ahtanum Greek, 139 Wash. 84, 245 Pac. 758 (1926). ""Sec. 90.14.220. |
