¶77 (dissenting) — It is well settled Western water law, as well as the law of this state, that municipal uses were not the same as domestic and community domestic and stock water uses under Washington law prior to the 2003 amendment of our state water laws, and a water right granted in the early 1960s for domestic and community domestic and stock water uses was not a right to put water to municipal use. Recognizing the rising de*610mand for water and the scarcity5 of this natural resource, in 1967, the legislature enacted relinquishment statutes subjecting water rights issued for community domestic and stock water uses and domestic uses to relinquishment.6
¶78 Rather than properly applying the relinquishment statutes to the water rights at issue here, the majority instead applies the 2003 laws governing municipal water uses to recharacterize domestic uses to mean municipal uses and thus defeat statutory relinquishment. This application of the 2003 amendment conflicts with relinquish*611ment statutes and fails to recognize the important policy decisions underlying these statutes.
¶79 Consistent with our prior decision in Lummi Indian Nation v. State, 170 Wn.2d 247, 241 P.3d 1220 (2010), I would hold that the relinquished rights in question cannot be resurrected. In holding otherwise, the majority fails to give effect to the relinquishment statute, misapplies the 2003 amendments, and unsettles legitimate expectations of water users in an already overappropriated water system.7 I respectfully dissent.
Discussion
¶80 In Lummi, we held that legislation enacted in 2003 governing municipal water supplies and suppliers was not facially unconstitutional. However, we recognized that as-applied constitutional claims might prevail if vested rights were affected by application of the 2003 amendments. This is the as-applied challenge we anticipated in Lummi.
|81 The appellants here8 assert due process and other challenges to the 2003 legislation as applied to water right certificates issued to Washington State University (WSU) in the 1960s for domestic and community domestic and stock water uses. Appellants assert that the 2003 legislation was applied to redefine the legal character of these water rights, transforming them into valid rights for municipal water supply purposes. Appellants argue that absent application of the 2003 legislation, these water rights were subject to statutory relinquishment9 under chapter 90.14 RCW and had, indeed, been relinquished, in whole or in part.
*612¶82 I would reverse and remand this case to the Washington Pollution Control Hearings Board (Board) for reconsideration of appellants’ claims of statutory relinquishment, with directions that the 2003 legislation cannot be applied to change the character of the water rights granted for domestic and community domestic and stock water uses to preserve water rights lost for failing to put the water to beneficial use.
Relevant Facts
¶83 In 2004, WSU applied to the Washington Department of Ecology for changes to all of its existing water rights that WSU holds to provide water to its primary campus. WSU is the state’s land grant institution of higher education, with its primary campus located within the limits of the city of Pullman, Washington. WSU operates its own water system that serves the campus. All of the water that is supplied is withdrawn from WSU’s wells, except for an emergency intertie with the city of Pullman.
¶84 WSU’s applications in effect sought to permit water authorized under any of its water rights to be withdrawn from any of its wells. The goal was to bring the university’s water rights into conformance with the in-fact consolidation of these rights that had occurred over time. Between 1935 and 1983, WSU was issued four water rights and it registered three claims for groundwater rights obtained prior to enactment of the groundwater code in 1945. WSU has drilled and operated eight wells. Eventually, WSU was pumping water from the wells into one integrated water system divided into two distribution zones. Also, as time has passed, WSU has consolidated its well operations, shifting pumping away from older wells as it brought new wells online. WSU never obtained authorization to use its water rights in an integrated system, and the university’s withdrawal of water from each of the individual wells has not matched the quantity of water authorized to be withdrawn from the well, either historically or at present. In recent *613years, WSU has withdrawn water through only three of its wells: Wells 6, 7, and 8.
¶85 In the early 2000s, Gary Wells, an engineer in WSU’s facilities operations division, began working on a water rights change proposal because WSU’s system was aging and largely dependent on one well, Well 7. Wells was concerned about being able to provide sufficient water for the campus if Well 7 became inoperable.
¶86 WSU provided notice of its applications to change its water rights, and Scott Cornelius and the Palouse Water Conservation Network objected to the change requests. In 2006, Ecology approved the proposed amendments for six of the rights but determined that one of the claims, Claim No. 098524, was invalid. As to the other water rights, Ecology applied the legislation enacted in 2003 that addresses municipal water supplies and suppliers.10 Ecology found that all of WSU’s remaining claimed rights are for “municipal water supply purposes” as defined by the new statutory provisions.
¶87 Appellants appealed to the Board, which resolved most of the issues against appellants on summary judgment. The Board decided that it lacked jurisdiction to address appellants’ constitutional challenges, characterizing them as tantamount to facial challenges. Following a hearing on the three issues not decided on summary judgment, the Board issued its final order in April 2008 and subsequently denied reconsideration.
¶88 As the Board found, groundwater is the primary source of water for WSU, the city of Pullman, the city of Moscow, Idaho, the University of Idaho, and the surrounding areas in Whitman County, Washington, and Latah County, Idaho. In the 1990s, the two universities and the two cities endorsed individual plans to reduce impacts of *614their groundwater withdrawals. WSU’s water use has been below annual targets, and in 2005, WSU’s water use was below the amount used in 1992, when efforts began to limit pumping.
¶89 WSU withdraws its water from the Grande Ronde Aquifer. It is undisputed, and the Board found, that long-term declining water levels in the Grand Ronde Aquifer threaten all of the water users in the basin if not addressed adequately. At the present time, the only recognized way to slow or reverse the aquifer decline is to reduce the withdrawal of water from it.
¶90 Appellants appealed the Board’s decision to Whitman County Superior Court, which affirmed. When appellants’ appealed to the Court of Appeals, Division Three certified the case to this court, which we accepted.
Standard of Review
¶91 The Washington Administrative Procedure Act (APA), chapter 34.05 RCW, governs proceedings before the Board. An appellate court reviewing a decision of the Board sits in the same position as the superior court and applies RCW 34.05.570’s standards of review directly to the agency record. Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 589, 957 P.2d 1241 (1998). Under RCW 34.05.570(3), in relevant part, a court may grant relief from an agency order in an adjudicative proceeding if it violates constitutional provisions, is outside the agency’s statutory authority, erroneously interprets or applies the law, is not supported by substantial evidence, or is arbitrary and capricious. See Postema v. Pollution Control Hr’gs Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000); Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wn.2d 769, 776, 947 P.2d 732 (1997).
¶92 Under the error of law standard, a court reviews the agency’s interpretation and application of a statute de novo. RCW 34.05.570(3)(d); Postema, 142 Wn.2d at 77. If the statute is ambiguous and falls within the agency’s special expertise, the agency’s interpretation of the statute is given *615great weight. Pub. Utility Dist. No. 1 of Pend Oreille County v. Dep’t of Ecology, 146 Wn.2d 778, 790, 51 P.3d 744 (2002); Postema, 142 Wn.2d at 77; Theodoratus, 135 Wn.2d at 589. At the end of the day, however, it is for the court to determine the meaning and purpose of a statute. Postema, 142 Wn.2d at 77; City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998).
¶93 A reviewing court “must uphold agency findings unless ‘[t]he order is not supported by evidence that is substantial when viewed in light of the whole record before the court. . . .' " R.D. Merrill Co. v. Pollution Control Hr’gs Bd., 137 Wn.2d 118, 135, 969 P.2d 458 (1999) (alterations in original) (quoting RCW 34.05.570(3)(e)). We accord deference to agency findings on factual matters. Id.; Penick v. Emp’t Sec. Dep’t, 82 Wn. App. 30, 37, 917 P.2d 136 (1996).
¶94 Because many of the issues before the Board were decided on summary judgment, the standards for reviewing summary judgment overlay the APA standards of review. Verizon Nw., Inc. v. Emp’t Sec. Dep’t, 164 Wn.2d 909, 916, 194 P.3d 255 (2008). We make the same inquiry as the Board, and summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Postema, 142 Wn.2d at 119; see Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999); CR 56(c). Facts and reasonable inferences from the facts are considered in the light most favorable to the nonmoving party. Postema, 142 Wn.2d at 119.
¶95 The burden of establishing that Ecology’s action was invalid is on appellants as the challengers asserting invalidity. RCW 34.05.570(1)(a); Pub. Utility Dist. No. 1, 146 Wn.2d at 790; Postema, 142 Wn.2d at 78.
Relinquishment
¶96 On August 1, 1962, WSU was issued Certificate 5070-A (Well 4) for domestic supply for WSU, with the right quantified at 1,500 gallons per minute and 2,260 acre-feet *616per year. On May 27, 1963, WSU was issued Certificate 5072-A (Well 5) for community domestic supply and stock water, quantified at 500 gallons per minute and 720 acre-feet per year. Appellants maintain that these rights were subject to statutory relinquishment and were relinquished in whole or in part because of nonuse over extended periods of time.
¶97 Ecology determined, however, (1) that these rights are for municipal water supply purposes according to the 2003 legislation that specifically defines “municipal water supply purposes,” RCW 90.03.015(4); (2) that WSU is a “municipal water supplier” as defined, RCW 90.03.015(3); and (3) that each of its rights is for municipal supply purposes according to present beneficial use.11 Water rights for municipal water purposes are excepted from relinquishment pursuant to RCW 90.14.140(2)(d).12 Appellants maintain, however, that applying the 2003 definition in RCW 90.03.015(4) to redefine the rights under Certificates *6175070-A and 5072-A as rights for municipal water supply purposes, with the result that the relinquishment statutes do not apply, violates due process. I agree with appellants.
¶98 Under the relinquishment statutes, any water right holder who, without cause, voluntarily fails to beneficially use all or any portion of the water right for a period of five successive years relinquishes the right or portion of the right. RCW 90.14.160-.180; Dep’t of Ecology v. Acquavella, 131 Wn.2d 746, 758, 935 P.2d 595 (1997). “Once a party has shown” that a water right holder “has failed to use any or all of its right [s] for five successive years,” then the burden is with the right holder to show “its nonuse falls under one of the narrow categories in RCW 90.14.140,” here, for municipal supply purposes, RCW 90.14.140(2)(d). Acquavella, 131 Wn.2d at 758.
¶99 Relinquishment is determined with regard to the time of nonuse, as statute provides and as we have previously recognized. In re Rights to Yakima River Drainage Basin, 177 Wn.2d 299, 319, 296 P.3d 835 (2013) (“[a]fter five years of consecutive nonuse of a water right, relinquishment follows unless an excuse for nonuse” applies); see R.D. Merrill Co., 137 Wn.2d at 144 (recognizing that events occurring after the five year statutory period of a water right’s nonuse “in whole or in part” was of no moment because “relinquishment had already occurred”). Such relinquished right “shall revert to the state.” RCW 90.14.180; see also RCW 90.14.130 (recognizing such reversion).
¶100 To demonstrate relinquishment, appellants rely, among other things, on a table documenting the annual volumes of water that WSU pumped in acre-feet from wells, including Wells 4 and 5, the withdrawal points for water under Certificates 5070-A and 5072-A.13 As to each right, *618the table shows that water was pumped from Wells 4 and 5 during some years, but this use either ceased entirely or dropped precipitously during a period of at least five successive years, and in neither case was the right used to the extent of the certificated amount of water.
¶101 Although WSU was authorized to withdraw up to 2,260 acre-feet per year under water right Certificate 5070-A from Well 4, it pumped a maximum of only 1,090 acre-feet, in 1969, and from 1989 through 2002, it pumped 740 acre-feet per year or less. Second Suppl. Decl. of Gary Wells in Supp. of WSU’s Mot. for Partial Summ. J., No. 06-099, Ex. 2 (Pollution Control Hr’gs Bd. Sept. 21, 2007) (2 Admin. R. Doc. 52). WSU was authorized to withdraw up to 720 acre-feet per year under water right Certificate 5072-A but withdrew no water from Well 5 from 1986 to 1995. Id.
¶102 WSU claims to have switched to pumping water under these rights from unauthorized wells, but the table does not show this. It does not show increased withdrawals from other wells in sufficient quantity to account for its decreased pumping from Wells 4 and 5. Further, the rights WSU held to withdraw from its wells other than Wells 4 and 5 were rights to amounts that were never fully withdrawn from the other wells, and it is difficult to see how water was withdrawn under Certificates 5070-A and 5072-A from WSU’s other wells when the full amount of water under the rights pertaining to the other wells was never withdrawn. Moreover, WSU agrees that it reduced its water use over time. There is no dispute that WSU has never beneficially used the quantities of water authorized under its water rights.
¶103 While there are questions remaining about the total amount that was not used under the water right certificates, there appears to be no question that WSU did not use the full extent of its water rights under Certificates 5070-A and 5072-A for periods of at least five successive years.
*619¶104 WSU contends that the relevant question for purposes of relinquishment is whether a right is “claimed” for municipal purposes and not whether it is “issued” for municipal purposes, relying on the term “claimed” in RCW 90.14.140(2)(d). In full, RCW 90.14.140(2)(d) says that “Notwithstanding any other provisions of RCW 90.14.130 through 90.14.180, there shall be no relinquishment of any water right... [i]f such right is claimed for municipal water supply purposes under chapter 90.03 RCW!’ (Emphasis added.)
¶105 The complete language of the exception shows what is meant. The exception applies to municipal water rights that have been acquired under the provisions in chapter 90.03 RCW for obtaining a right to use water for municipal water supply purposes.14 Here, the two certificates of water rights show on their face that when they were acquired, it was for domestic and community domestic and stock water uses, not municipal uses.
¶106 The fact that WSU apparently combined the water from its wells into a consolidated system did not alter the purposes of the water rights it held during the time period that relinquishment occurred. Water rights issued for domestic uses were not water rights for municipal uses. The definitions section of chapter 90.14 RCW, where the relinquishment statutes are found, draws a distinction between domestic and municipal uses of water in RCW 90.14.031. The statute defines “beneficial use” to include “use for domestic water [and] municipal.” RCW 90.14.031. RCW 90.14.140(2)(d), the exception itself, applies to water rights for “municipal water supply purposes” and does not mention or imply that water rights for domestic uses qualify for the exception.
¶107 The distinction between domestic uses and municipal uses is reflected in a large body of law in this state and *620other western states, confirming that the distinction between domestic use and municipal use has long been an elemental concept in water law. And while municipal use might include water for residential, domestic use, the converse has not been true. A water right issued for domestic use was not a water right that encompassed municipal use.
¶108 In our state, the distinction continues to be explicitly recognized in numerous statutes aside from chapter 90.14 RCW.15 In addition, case law in this state has also long recognized the distinction between water for domestic and municipal uses.16 Moreover, that municipal and domestic uses are distinct is also shown by leading treatises and *621journals. See Linda A. Malone, Environmental Regulation of Land Use § 8:3, at 8-14 (2014) (discussing priorities of water rights and noting that in some states priority may be modified by a system of preferences when there is a shortage or when uses compete; “[t]he usual ranking of preferences is: (1) domestic; (2) municipal use; (3) irrigation; (4) mining and manufacturing...” (emphasis added)); A. Dan Tarlock, Law of Water Rights and Resources § 5:66, at 337 (2014) (“[wjestern states have a standard list of purposes for which water may be appropriated [, which] originally included the use of water for domestic, municipal, irrigation...” (emphasis added)); Jay F. Stein, James C. Brockmann, Cynthia F. Coveil & John C. Peck, Water Use and Reuse: The New Hydrologic Cycle, 57 Rocky Mt. Min. L. Inst. § 29.02, at 29-3 (2011) (“[w]estern prior appropriation water law is premised on the concept of beneficial use[, and i]n state constitutions, statutes, and administrative regulations, western states recognize and sometimes define various types of water use such as domestic, municipal, industrial, irrigation, water power, recreational, and others” (emphasis added)).
¶109 Domestic water use has been described thusly:
“Household purposes, including water for drinking, washing, bathing, culinary purposes, and the like; water for such domestic animals as are used and kept about the house, such as work animals and cows kept to supply their owners and their families with dairy products; and such other uses, not being either agricultural or mechanical, as directly tend to secure and promote the healthfulness and comfort of the home.”
Robert E. Beck, Municipal Water Priorities/Preferences in Times of Scarcity: The Impact of Urban Demand on Natural Resource Industries, 56 Rocky Mt. Min. L. Inst. § 7.02 [1] (2010) (quoting Armstrong v. Larimer County Ditch Co., 1 Colo. App. 49, 27 P. 235, 236 (1891)).
¶110 Municipal water use has been described in this way:
*622Of the many types of beneficial use, municipal use is the broadest because it encompasses the multitude of uses made of water in a city, from supplying homes, businesses, and industries, to watering lawns and golf courses and providing recreational water in lakes and swimming pools.
Stein et al., supra, at 29-3.17
¶111 As can be seen, municipal uses may include uses that fall within the domestic uses category, but a water right issued for domestic use did not allow the user to put the water to any and all municipal uses. For example, the holder of a water right for domestic uses would not have been entitled to use the water under the right for a public golf course, although the holder of a water right for municipal uses could do so. In addition, as the preference lists adopted by statute in some of the western states reveal, domestic use has traditionally been regarded as superior in importance.
¶112 In sum, there is and has been a basic legal difference between water rights granted for municipal use and water rights granted for domestic use. I recognize that on their face the 2003 statutory provisions concerning municipal water alter the distinction insofar as a particular right now falls under the definition for “municipal water supply” purposes. But here the issue is whether statutory relin*623quishment occurred prior to these statutes being enacted, and throughout that time the distinction between municipal uses and domestic uses prevailed.
1113 WSU maintains, however, that despite the purposes of use stated on the water rights certificates, the two rights were in fact granted for municipal uses. For example, WSU relies on language in its application for the right to appropriate water rather than the purpose actually stated on Certificate 5072-A (Well 5) for community domestic supply and stock water. The difficulty is that an applicant could state any number or type of possible proposed uses on an application to appropriate water. What matters is the use for which the water right is granted. Indeed, when a water right certificate is granted for an express purpose that is different from what was requested, it is significant evidence that the requested purpose was rejected.
¶114 Moreover, great uncertainty would be introduced into certificated water rights if they can be disregarded in favor of after-the-fact, case-by-case inquiries into the purpose of use that the applicant attempted to obtain. Absent a showing that the issuing agency meant to grant a certificated water right for municipal uses but inadvertently failed to do so, i.e., a scrivener’s error or comparable mistake, the purpose of use stated on the certificate must control. Cf., e.g., RCW 90.03.330(2) (providing for adjustment of certificates if ministerial errors are discovered).
¶115 WSU additionally points out that its application showed an expectation of increasing future enrollment and points out that the stated quantity of water right in Certificate 5072-A was unnecessary to serve the then-existing population. It should go without saying, after our decision in Theodoratus, that Ecology and its predecessor have not always issued water right certificates in accordance with existing statutes.18 But whether the agency had *624authority to issue a right for domestic uses in an amount to satisfy far-in-the-future predicted expansion is not a matter that must be decided here. The fact is that the two rights at issue are certificated water rights for domestic and community domestic and stock water uses that have never, in the 50 or so years since issuance, been used in amounts anywhere close to the amounts stated on the certificates. The applicable relinquishment statute provides that
[a]ny person hereafter entitled to divert or withdraw waters of the state through an appropriation authorized under RCW 90.03.330, 90.44.080, or 90.44.090 . . . who voluntarily fails, without sufficient cause, to beneficially use all or any part of said right to withdraw for any period of five successive years shall relinquish such right or portion thereof.
RCW 90.14.180. Nothing in this statute requires that unused water under a certificated right has to first be put to use before the right is subject to relinquishment.
¶116 Appellants have presented evidence that WSU relinquished any right it may have had to use the stated amount of water long before 2003, and WSU does not adequately rebut the evidence.
¶117 Finally, it should be noted that in other administrative review cases, the Board has addressed relinquishment in connection with water rights that were issued for community domestic purposes, showing that the Board has not equated community domestic use to municipal use. Olga Water Users, Inc. v. Dep’t of Ecology, No. 08-123, Order Granting Mot. for Summ. J. at 9 (Pollution Control Hr’gs Bd. July 10, 2009) (Board observed that “[f]ive years have not passed ..., so there has been no relinquishment of the community domestic use portion of the water right” (emphasis added)); Ga. Manor Water Ass’n v. Dep’t of Ecology, No. 93-068, Final Findings of Fact, Conclusions of Law, & Order at 20 (Pollution Control Hr’gs Bd. Nov. 9, 1994) (“Ecology’s order to show cause why Georgia Manor should not relinquish 8 gpm [gallons per minute] of the 20 gpm authorized for community domestic use ... for more than 5 consecutive *625years of voluntary nonuse, without sufficient cause, is affirmed” (emphasis added)). The Board’s failure to similarly apply the relinquishment statute here was legal error warranting reversal. Postema, 142 Wn.2d at 77.
Due Process
¶118 The rights under Certificates 5070-A and 5072-A were held as rights to withdraw water for domestic and community domestic and stock water uses. But for Ecology’s and the Board’s determinations that the 2003 legislation changed their character retrospectively, these rights were not rights to use water for municipal water supply uses and they were subject to relinquishment. This being so, I turn to appellants’ constitutional due process claim.
¶119 Appellants contend that the Board’s application of the 2003 definition of “municipal water supply,”19 with the result that water rights in Certificates 5070-A and 5072-A were not subject to relinquishment despite extended periods of nonuse prior to 2003, violates due process. Appellants appropriately begin with the court’s decision in Lummi, 170 Wn.2d 247. There, we rejected arguments that the 2003 legislation is facially unconstitutional as violating separation of powers principles and due process.20 However, we explicitly recognized that as-applied constitutional chal*626lenges to the 2003 enactments could be made. Id. at 258, 263, 272.21 We also held:
“[P]roperty owners have a vested interest in their water rights to the extent that the water is beneficially used on the land.” Dep’t of Ecology v. Adsit, 103 Wn.2d 698, 705, 694 P.2d 1065 (1985) (citing Dep’t of Ecology v. Acquavella, 100 Wn.2d 651, 655, 674 P.2d 160 (1983)). Vested water rights cannot be deprived without due process of law. Id. (citing Nielson v. Sponer, 46 Wash. 14, 89 P. 155 (1907)).
Id. at 265 (alteration in original).
¶120 As a junior water right holder, individual appellant Scott Cornelius’s place in line is lawfully subject to impact by senior rights, including those of WSU. But as appellants argue, a junior right holder is protected from impact of senior rights that in law were relinquished because of nonuse. In Lummi, we reiterated that Ecology can approve changes in water rights only to the extent they are valid. 170 Wn.2d at 270-71 (citing R.D. Merrill, 137 Wn.2d at 127). We have also observed that groundwater rights cannot be transferred or changed if lost as a result of nonuse. R.D. Merrill, 137 Wn.2d at 126.
¶121 Appellants also argue that consolidation of WSU’s water rights in their certificated amounts will increase WSU’s access to and ability to pump water from the aquifer.22 At least to the extent WSU has relinquished part *627of its rights, they are correct. Appellants also argue that the Board’s application of the 2003 laws pertaining to municipal water supply purposes effectively moved Cornelius’s junior right farther down the line, and that they were denied the ability to mount a defense because the Board’s application of the 2003 definition of “municipal water supply purposes” meant evidence they submitted of relinquishment was entirely disregarded.
¶122 Appellants have shown that the Board’s application of the 2003 legislation violated due process. Unlike the facial challenge in Lummi, 170 Wn.2d at 267, here appellants establish that individual right holder Scott Cornelius’s reasonable expectation of enjoyment of his water rights is impaired in violation of due process by the Board’s application of the 2003 legislation, which effectively bars consideration of his evidence showing relinquishment prior to 2003. Due process requires that in the consideration of amendments to groundwater rights under RCW 90.44.100, historical nonuse of rights issued for domestic and community domestic and stock water uses must be evaluated and the water rights be relinquished in whole or part when appropriate under the statutes. See id. at 270-71 (citing R.D. Merrill, 137 Wn.2d at 127; RCW 90.44.100).23
*628¶123 I disagree with the majority’s view that to reach this conclusion would require us to overrule Lummi and invalidate RCW 90.03.560. Majority at 591-92. Both contentions are incorrect. In Lummi, we acknowledged that the 2003 amendments applied to and confirmed “existing” water rights and that the amendments did not resurrect any relinquished rights. 170 Wn.2d at 263, 264, 268. Similarly, RCW 90.03.560 clearly applies to existing rights, that is, rights that have not been relinquished.24
¶124 Further, the majority says that this case demonstrates the “labeling problem” that RCW 90.03.560 was meant to address. Majority at 592. The majority reasons that in 1962 and 1963, Ecology had no reason to be precise about distinguishing between municipal and domestic uses, stating that “Ecology could have issued domestic supply certificates to entities that were functionally municipal and vice versa.” Id.
¶125 I disagree. As discussed at length above, the distinction between domestic use and municipal use is a long-standing fixture of water law in the west. Under the statutory scheme, designated water rights may not be so easily disregarded. Although the 2003 amendments resolved a particular labeling problem regarding existing water rights utilized for municipal purposes, that circumstance is not present here. As we have explained, if a user has met application requirements under RCW 90.03.290, Ecology will issue a water rights permit “ ‘stating the *629amount of water to which the applicant shall be entitled and the beneficial use or uses to which it may be applied.’ ” Theodoratus, 135 Wn.2d at 591 (quoting RCW 90.03-.290(3)). Thereafter, a “final certificate of water right will be issued upon a showing that the appropriation has been perfected.” Id. at 592. In Theodoratus, we held that “a water right must be based on actual application of water to beneficial use and not upon system capacity.” Id. “ ‘An appropriated water right is established and maintained by the purposeful application of a given quantity of water to a beneficial use upon the land.’ ” Id. (quoting Dep’t of Ecology v. Grimes, 121 Wn.2d 459, 468, 852 P.2d 1044 (1993) (emphasis omitted) (quoting Neubert v. Yakima-Tieton Irrig. Dist., 117 Wn.2d 232, 237, 814 P.2d 199 (1991))). “Perfection of an appropriative right requires that appropriation is complete only when the water is actually applied to a beneficial use.” Id. (emphasis omitted). “In requiring actual application of water to beneficial use in order to perfect an appropriative right before a final certificate of water right may be issued, the statutes codify fundamental western water law.” Id. “[B]eneficial use must be calculated based upon diversion and actual use under this state’s law.” Id. at 593; Acquavella, 131 Wn.2d at 756.
¶126 More to the point, as we have repeatedly held, “[w]ater rights may be relinquished.” Theodoratus, 135 Wn.2d at 594-95 (citing RCW 90.14.130-.180); see also Lummi, 170 Wn.2d at 251-52. “The failure ‘to beneficially use all or any part’ of the right for five years, without sufficient cause, ‘shall relinquish’ the right in whole or in part.” Theodoratus, 135 Wn.2d at 595 (quoting RCW 90.14-.160, .170, .180); see also Lummi, 170 Wn.2d at 251-52. “We will not construe the statutory scheme in a way which renders [the] provisions of the relinquishment statutes meaningless.” Theodoratus, 135 Wn.2d at 595. Yet that is precisely what the majority has done. The majority purports to apply Lummi, but as noted, we recognized there that the 2003 amendments do not resurrect relinquished rights. 170 Wn.2d at 268.
*630¶127 The fact that the legislature waited until 2003 to formally define “municipal water supply purposes” does not alter the fact that the water right designation for domestic use appearing in the 1962 and 1963 certificates did not include municipal use, such domestic use was subject to relinquishment, and was so relinquished due to nonuse long before the 2003 amendments issued. “Under RCW 90.14-.180, a person who holds a water right and who voluntarily fails, without sufficient cause, to beneficially use all or a portion of the right for five successive years will relinquish all or a portion of the right.” Pac. Land Partners, LLC v. Dep’t of Ecology, 150 Wn. App. 740, 749-50, 208 P.3d 586 (emphasis added) (citing R.D. Merrill, 137 Wn.2d at 139; Motley-Motley, Inc. v. Pollution Control Hr’gs Bd., 127 Wn. App. 62, 75, 110 P.3d 812 (2005)), review denied, 167 Wn.2d 1007 (2009). Such relinquished right “shall revert to the state.” RCW 90.14.180; see also Pub. Util. Dist. No. 1, 146 Wn.2d at 798 (“Statutory forfeiture [under RCW 90.14.130-.180] does not require intent to abandon.”).25
¶128 In my view, this court must remand the question of the extent to which WSU relinquished water rights under Certificates 5070-A and 5072-A. The relinquished portions of these rights cannot be recharacterized as rights for municipal uses; to do so under the circumstances violates due process. To the extent these rights have been relinquished, they are not eligible for amendment.
*631Conclusion
¶129 Water rights granted in the 1960s for domestic uses was not a water right granted for municipal use. Accordingly, the exception to statutory relinquishment that exists for municipal water rights did not apply to these rights during the period of time that appellants assert they were lost for nonuse. The rights that WSU held for domestic uses were subject to statutory relinquishment.
¶130 The appellants have submitted sufficient evidence to show nonuse, in whole or in part, of groundwater rights under Certificates 5070-A and 5072-A, and as we noted in Lummi, the 2003 amendments do not resurrect relinquished rights. 170 Wn.2d at 268.
¶131 Here, appellants have established a due process violation because vested rights were impaired by the Board’s application of the 2003 legislation governing municipal water uses to WSU’s water rights, which were issued for domestic uses and community domestic and stock water uses and had long since been subject to relinquishment due to nonuse.
|132 This court should reverse the Board’s determination that the water rights under Certificates 5070-A and 5072-A were not relinquished in whole or in part and remand for a determination of the extent to which these rights were relinquished.
¶133 I dissent.
Wiggins and Gordon McCloud, JJ., concur with Madsen, C.J.Reconsideration denied April 29, 2015.
Washington State relies on melting glaciers to provide 1.8 trillion liters (470 billion gallons) of water each summer. See,Facts About Glaciers, Nat’l Snow & Ice Data Ctr.: http://nsidc.org/cryosphere/glaciers/quickfacts.html (last visited Jan. 6, 2015). However, glaciers in the North Cascades have lost 18 to 32 percent of their total volume since 1983 and have shrunk by 50 percent in the last century, placing them at levels not seen in 4,000 years. See Wash. State Dep’t of Ecology, Facts about Washington’s Retreating Glaciers and Declining Snow Pack, https://fortress.wa.gov /ecy/publications/publications/0711016.pdf; All Things Considered: Shrinking Glaciers Could Squeeze Washington’s Water Supply, Nat’l Pub. Radio (Nov. 21, 2014) (transcript at http://www.npr.org/templates/ transcript/transcript.php?storyId=36576 2034). The average mountain snowpack in the North Cascades (critical to summer streamflows) has declined at 73 percent of mountain sites studied since 1983, and spring runoff is occurring earlier each year. See Facts about Washington’s Retreating Glaciers, supra. Washington’s population has doubled over the past 50 years, and our current population of 6.5 million is expected to increase by nearly 2 million by the year 2030, dramatically increasing the demand for water. See Wash. Envtl. Council Report, Before the Well Runs Dry: Water Solutions for Washington, http://wecprotects.org/publications /before-the-well-runs-dry-water-solutions-for/Before%20the%20well%20runs%20dry.pdf. In the Puget Sound region alone, the population is projected to increase by over 1 million people in the next 20 years. Id.
Noting that the “future growth and development of the state is dependent upon effective management and efficient use of the state’s water resources,” the legislation’s stated purpose is in relevant part “to cause a return to the state of any water rights which are no longer exercised by putting said waters to beneficial use.” Laws of 1967, ch. 233, § 1. The legislature found “[ejxtensive uncertainty” as to the volume of private claims to water in the state and that such uncertainty “seriously retards the efficient utilization and administration of the state’s water resources, and impedes the fullest beneficial use thereof.” Id. § 2(1), (2). The legislature further found that “[a] strong beneficial use requirement as a condition precedent to the continued ownership of a right to withdraw or divert water is essential to the orderly development of the state”; that “[ejnforcement of the state’s beneficial use policy is required by the state’s rapid growth”; that “[a]ll rights to divert or withdraw water . . . must be subjected to the beneficial use requirement”; and that “[t]he availability for appropriation of additional water as a result of the requirements of this act will accelerate growth, development, and diversification of the economy of the state.” Id. § 2(3)-(6).
It is undisputed that long-term declining water levels in the Grand Ronde Aquifer threaten all of the water users in the basin if not addressed adequately.
The appellants are Scott Cornelius, the Palouse Water Conservation Network, and the Sierra Club Palouse Group.
Statutory relinquishment is also referred to as forfeiture.
The parties refer to the body of 2003 legislation, concerning municipal water as the “Municipal Water Law” or “MWL,” a name that is apparently used for convenience since it is not a title appearing in the bill containing the amendments and new statutes. See Laws of 2003, 1st Sp. Sess., ch. 5.
RCW 90.03.015 provides in. part:
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(3) “Municipal water supplier” means an entity that supplies water for municipal water supply purposes.
(4) “Municipal water supply purposes” means a beneficial use of water:
(a) For residential purposes through fifteen or more residential service connections or for providing residential use of water for a nonresidential population that is, on average, at least twenty-five people for at least sixty days a year .... If water is beneficially used under a water right for the purposes listed in (a). . . of this subsection, any other beneficial use of water under the right generally associated with the use of water within a municipality is also for “municipal water supply purposes,” including, but not limited to, beneficial use for commercial, industrial, irrigation of parks and open spaces, institutional, landscaping, fire flow, water system maintenance and repair, or related purposes.
RCW 90.14.140 sets out sufficient cause for nonuse of a water right to except the right from relinquishment. RCW 90.14.140 states in part:
(2) Notwithstanding any other provisions of RCW 90.14.130 through 90.14.180, there shall be no relinquishment of any water right:
(d) If such right is claimed for municipal water supply purposes under chapter 90.03 RCW.
This water use table was prepared by WSU’s water department staff and has been used by the parties for purposes of this litigation. Second Suppl. Decl. of Gary Wells in Supp. of WSU’s Mot. for Partial Summ. J., No. 06-099, Ex. 2 (Pollution Control Hr’gs Bd. Sept. 21, 2007) (2 Admin. Record (AR) Doc. 52).
RCW 90.44.060 provides that obtaining groundwater permits and rights is governed by RCW 90.03.250 through 90.03.340.
See, e.g., RCW 90.54.020(1), (4) (declarations of fundamental principles for utilizing and managing state waters; “[u]ses of water for domestic . . . purposes”; “water for municipal . . . beneficial uses” (emphasis added)); RCW 90.66.065(4) (transfers or change in purpose of family farm permits; “[b]efore a change in purpose of a family farm water permit to municipal supply purpose or domestic purpose may be authorized . . .” (emphasis added)); RCW 90.38.005(l)(a)-(b) (regarding Yakima River Basin rights; noting intensifying “competition for water among municipal, domestic, industrial, agricultural, and [etc.] interests” (emphasis added)), .060 (“agricultural, municipal, and domestic water supply” (emphasis added)), .070(4) (“integrated plan to support future municipal and domestic water needs” (emphasis added)); Laws op 2006, ch. 168, § 1, at 765 (regarding the Odessa ground water subarea; “continued availability of groundwater for domestic, municipal, industrial, and agricultural uses ... in great jeopardy” (emphasis added)); RCW 89.12.190(1) (regarding Columbia Basin project; “availability of groundwater for domestic, municipal, industrial, and agricultural uses” (emphasis added)); RCW 90.90.020(3)(d) (Columbia River Basin water supply; “[n]ew municipal, domestic, industrial, and irrigation water needs” (emphasis added)); RCW 80.04.010(31) (defining “water system” to include all real estate, fixtures, appliances, and structures used for furnishing “water for power, irrigation, reclamation, manufacturing, municipal, domestic or other beneficial uses for hire” (emphasis added)); see also Clark v. Olson, 177 Wash. 237, 238, 31 P.2d 534 (1934) (acknowledging that such domestic versus municipal distinction was present in the predecessor “water system” definitional statute in 1934); RCW 90.90.110; RCW 36.145.100(1)(f); RCW 43.99E.010, .025(1).
See, e.g., City of New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 494, 64 P. 735 (1901) (referring to a private corporation supplying Whatcom with “water for general domestic and municipal use” (emphasis added)); State v. Superior Court, 51 Wash. 386, 394, 99 P. 3 (1909) (evidence showed need for “water to supply the city of Raymond for sewerage purposes, fire protection, and other municipal uses, and also to supply its inhabitants for ordinary domestic uses in their homes and otherwise, as such use is commonly understood” (emphasis added)); Okanogan Wilderness League, 133 Wn.2d at 772 (reciting facts concerning a water right for “domestic purposes . . . and for general municipal purposes” (emphasis added)).
A more detailed discussion of municipal water uses follows:
Within the scope of public water supply or municipal water supply, almost the full range of uses exists: residential (domestic), governmental (city lands and buildings, institutions, fire protection, sewers), commercial, and industrial. The only two primary uses generally not mentioned are agriculture and mining, although mineral processing could come within industrial use, and mining less clearly within industrial use. Often, early commercial establishments were in the same structure as the residence. Water was used in the commercial establishment for the same primary uses as in residences — human consumption and sanitation. At some point cities became industrialized, like Pittsburgh, known for steelmaking. Thus municipal and industrial were one because industry was located in urban areas. Add to these governmental uses, such as fire prevention, park maintenance, street washing, and public institutions, and the picture is complete. Today cities may consist largely of residential and commercial habitations and government structures.
Beck, supra, § 7.0312] [d] (footnote omitted).
See Theodoratus, 135 Wn.2d at 598 (noting Ecology had “acted ultra vires in utilizing an unlawful system capacity measure of a water right”).
In upholding Ecology’s determinations that the 2003 definition of “municipal water supply purposes” applies, the Board concluded that whether water rights are for “municipal water supply purposes” is determined at the time the right is characterized because the legislature used language defining “municipal water supply purposes” in the “present tense,” i.e., “means a beneficial use of water.” ROW 90.03.015(4) (emphasis added). Definitions in statutes frequently begin with “ “X’ means . ...” I do not agree that this shows legislative intent that the definition applies to revive rights lost to relinquishment before the 2003 legislation was enacted.
Our analysis in Lummi turned on the parameters of the “facial challenge” at issue. 170 Wn.2d at 267. We stated, “[T]his is a facial challenge, and a ‘facial challenge must be rejected if there are any circumstances where the statute can constitutionally be applied.’ ” Id. (quoting Wash. State Republican Party v. Wash. State Pub. Disclosure Comm’n, 141 Wn.2d 245, 282 n.14, 4 P.3d 808 (2000)).
We stated, “[N]othing in this opinion should be taken to forestall a proper ‘as applied’ challenge.” Id. at 272. We explained, “Because this is a facial challenge, no case has been pleaded or proved where any individual rights holder’s reasonable expectation of the enjoyment of water rights has actually been impaired or deprived in violation of due process of law.” Id. at 267. The present case is the as-applied challenge that Lummi did not address but expressly recognized might be raised.
Significantly, it is undisputed that the Grand Ronde Aquifer, from which individual plaintiff Scott Cornelius and WSU obtain their water, is being pumped at a rate greater than the recharge rate. The Board determined, as all parties agree, that declining water levels in the aquifer threaten all of the users in the basin. Aquifer levels have declined an average 100 feet since measurements began in the 1930s. Individual appellant Scott Cornelius has documented a drop of 12.5 feet over 15 years in his private, domestic well.
The Board’s 2008 final order stated that “[t]he extent and availability of groundwater resources in the GRA [Grande Ronde Aquifer] are poorly known, due *627in part to a lack of precise information about the aquifer’s rate of recharge. It is therefore impossible to predict with any degree of certainty how long the water in the GRAwill last.” Findings of Fact, Conclusions of Law & Order, No. 06-099, at 19-22 (Pollution Control Hr’gs Bd. Apr. 17, 2008) (4 AR Doc. 89). Pumping water in the area exceeds the aquifer’s recharge and increases in the aggregate pumping in the Pullman-Moscow region “will necessarily cause water-level declines within the aquifer.” Id. at 21.
I again disagree with the majority’s view that “[i]f we ruled for Cornelius, Ecology would regularly violate a junior water right holder’s due process rights when it applied RCW 90.03.560 to amend a senior municipal holder’s water right, the precise argument we rejected in Lummi Indian Nation.” Majority at 594. As noted, Lummi rejected only a facial challenge and left the door open for the as applied challenge presented here. Moreover, as discussed above, RCW 90.03.560 may be applied to relabel existing rights, that is, water rights that have been fully utilized and put to beneficial use, and thus have not been statutorily relinquished.
RCW 90.03.560 provides as follows:
When requested by a municipal water supplier or when processing a change or amendment to the right, the department shall amend the water right documents and related records to ensure that water rights that are for municipal water supply purposes, as defined in RCW 90.03.015, are correctly identified as being for municipal water supply purposes. This section authorizes a water right or portion of a water right held or acquired by a municipal water supplier that is for municipal water supply purposes as defined in RCW 90.03.015 to be identified as being a water right for municipal water supply purposes. However, it does not authorize any other water right or other portion of a right held or acquired by a municipal water supplier to be so identified without the approval of a change or transfer of the right or portion of the right for such a purpose.
This result does not render RCW 90.03.560 superfluous, as the majority contends. The statute may be properly applied to the appropriate circumstances. For instance, had WSU fully utilized the water allocated under Certificates 5070-A and 5072-A since the mid-1960s without lapse and broadened the use of such water to include municipal uses, then there would be no relinquishment and WSU’s change application could be properly processed under RCW 90.03.560. But that is not the circumstance here, and RCW 90.03.560 is not applicable under the facts of this case. Cf. Pub. Utility Dist. No. 1, 146 Wn.2d at 798 (“ [I]n 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. If the right has been extinguished through relinquishment or abandonment, it is not subject to a certificate of change.” (citation omitted)).