(dissenting) — After observing that "RCW 75.20 indicates a broad scheme of protection for food fish" and noting the duty placed upon dam owners to "provide and maintain fishways," the majority proceeds to eviscerate RCW 75.20.060 and completely alter the carefully conceived and constructed legislative program of fish propagation and fisheries improvement.
The majority, using a sort of "fly in amber" analysis, holds that RCW 75.20.060 refers to the initial construction only of fishways and that any and all advancements in the *385state of the art relative to fishways may be ignored by the dam owner.
The vice of the argument of the majority is that it makes the unfounded assumption that the phrase "[ejvery dam . . . shall be provided with a durable and efficient fishway . . ." (italics mine) refers only to initial construction of such fishway. But there is no such qualifying term in the statute and consistent with the concern of the majority as to our invasion of legislative intent, it does not behoove us to supply such a qualifier. The statute clearly, plainly and unequivocally states a "durable and efficient" fishway "shall be provided" and "shall be maintained in a practical and effective condition in such place, form, and capacity as the director may approve." This does not mean only at the time of construction of the dam or at the construction of the fishway or at any other time which might strike the fancy or financial exigency of a dam owner. It means at all times.
Further, the use of the word "capacity" itself contemplates that as fish runs change through improved circumstances, the fishway must he changed, modified or even replaced to meet the increased fish runs.
The majority argues that since RCW 75.20.061 expressly refers to reconstruction or modification of an existing fish passage facility or fish protective device, somehow the duty imposed under .060 is limited to the original construction of fish ladders.
This contention is answerable in three ways:
1. As indicated above, RCW 75.20.060 refers to fishways which shall he provided at all times and with form and capacity to function effectively.
2. RCW 75.20.061 was shown, by an uncontroverted affidavit which the majority neglects to mention, to he a departmental request hill passed in the 1963 legislative session. This affidavit, by 3. E. Lasater, assistant director of the Department of Fisheries, states that in 1963 federal funds became available to screen irrigation ditches in Eastern Washington. RCW 75.20.061 allowed the director of *386fisheries to act in his discretion while federal funds were available to screen the ditches directly, where circumstances existed which made it difficult to protect the fishery resource adequately or rapidly. As stated in the affidavit— given by one with personal knowledge of the conditions and circumstances leading to the departmental request for RCW 75.20.061 — "[s]ince the federal funds were available the option given under RCW 75.20.061 was requested not to necessarily save the owner from his responsibilities under the law but rather to provide immediate needed protection for the resource."
3. All of the authority granted by RCW 75.20.061 is granted to the director "in addition to other authority granted in this chapter" — i.e., in RCW 75.20.060.
I would affirm the Court of Appeals.
Rosellini and Utter, JJ., concur with Dolliver, J.