Fight over rural water use faces critical decision

OLYMPIA -- A long-standing dispute over Kittitas County's rural development policies went before the state Supreme Court on Tuesday in a case carrying statewide implications for rural development and access to water.

A county attorney asked the nine justices to reverse a state land-use appeals board's decision that Kittitas County violated the state prohibitions against sprawl.

Neil Caulkins also argued the county has no authority to determine whether a legal right exists to the use of water from wells, which make growth and development in rural counties possible.

An assistant state attorney general -- representing the state Department of Ecology -- countered the county is obligated to consider the legal right to water when it approves new rural developments, describing the county's action as a "blatant" disregard for case law and state statute.

Justices asked a number of questions but gave no indication how they might rule.

They did, however, raise questions about whether state laws are in conflict, which would require a legislative solution to avoid confusion.

A decision isn't expected for up to a year.

The case reached the state Supreme Court via a series of consolidated cases that a state appeals court concluded raised statewide issues most properly considered by the state's high court.

The case touches a range of interests, from counties, builders and developers on the pro-growth side, and farmers, the state Department of Ecology and citizen groups on the other, complaining the county has been too lax in its interpretation of land-use rules.

Kittitas County was the fourth-fastest growing county in the state in 2007 before the nationwide recession helped bring development to a crawl. The ban on new water wells, imposed by Ecology officials in July 2009, further dampened growth.

On the land-use issue, Caulkins argued the appeals board, the Eastern Washington Growth Management Hearings Board, ignored the evidence in the record in concluding the county violated the Growth Management Act by allowing lot sizes as small as three acres in rural areas.

Caulkins said state law holds county decisions to be legal because counties know best the character of their communities.

He said farmers and developers told county commissioners three-acre zoning was suitable.

He said the growth management appeals board ignored case law when it concluded that allowing one dwelling unit per five acres maintains rural character.

"Growth management provides that local circumstances must be taken into consideration. We have evidence in the record that talked about the county's local circumstances," Caulkins continued.

The comment prompted a question from Justice Susan Owens about what weight the growth management board must give to local testimony.

"Suppose someone with a tinfoil hat testified. Must the board be bound by that?" she asked.

Justice Tom Chambers expressed concern that land-use laws are unclear, but acknowledged that while growth management requires local planning, it allows a top-down review by appeals boards.

"There's the rub," he said.

Keith Scully, an attorney representing conservation groups challenging the county, argued it had provided no evidence that a minimum lot size of three acres was appropriate.

On the water issue, Caulkins argued the county has no responsibility to determine legal access to water, that is, whether the water proposed for use isn't already owned by a senior water-right holder.

The Ecology Department banned new wells, saying a recent proliferation and the possibility of 6,800 new wells for approved lots would take water already claimed by others, including farmers and the Yakama Nation, who have senior water rights.

It argues the new wells intercept water destined for streams and rivers, thereby damaging senior water and streamflows meant to protect fish.

A recent report from the U.S. Geological Survey concluded that well use across the basin, including existing domestic wells, irrigation and municipal wells, are consuming 200 cubic feet per second of water that would have reached the river.

While the USGS study was pending, Ecology held off imposing limits on well uses elsewhere in Kittitas County and the rest of the Yakima River Basin. But with the report and a new model for determining well effects on surface water now available, some regulation of water use in Yakima and Benton counties is considered likely.

Wells for homes don't need a state permit. They are, however, subject to being shut off when there isn't enough water to supply senior rights.

Ecology officials contend homeowners who assume their water use is safe by virtue of having a well are taking a risk.

Caulkins argued the county is required to determine the adequacy and quality of water to serve a house, but not whether that right is legal. He also said the county has no authority to consider whether individual developments with common land ownership using common roads must be reviewed together.

But Alan Reichman, representing the Ecology Department, told the justices that state law imposes that requirement on counties. He said the county's practice of reviewing adjacent developments independently of one another violates an earlier Supreme Court ruling that one project can't use more than 5,000 gallons per day, the upper limit for an exempt well.

Reichman called the county's refusal to combine several adjacent applications into one to determine the environmental impact a blatant violation of the court's earlier decision.

"There needs to be a requirement for people who want to acquire rights to water to provide adequate information to show common ownership so the planning department can make that water availability decision," he said.

Justice James Johnson questioned whether counties have an obligation to consider how their land-use decisions would affect water rights downstream and beyond county lines.

Reichman said he did not know whether any counties had done that.

"I'll take that as a 'no,'" Johnson said.