State Supreme Court slams Kittitas County on water

In a stinging defeat, the state Supreme Court on Thursday ruled that Kittitas County failed to protect groundwater resources while making land-use decisions on rural housing developments.

The court, in a 6-3 decision, used strong language to conclude the county violated state law in recent years when it reviewed and approved side-by-side subdivision requests, allowing developers to evade legal limits on the use of exempt wells to serve each home.

"This could come at a great cost to the existing water rights of nearby property owners, even those in adjoining counties, if subdivisions and developments overuse the well permit exemption contrary to law," the majority said in a 28-page opinion.

Environmental groups hailed the decision.

Rachael Paschal Osborn, executive director of the Center for Environmental Law and Policy of Spokane, said many counties are guilty of allowing developers to use the well exemption to serve multiple homes in a housing development, which is illegal.

"The counties make a lot of decisions that affect groundwater," Osborn said. "That they have stewardship of that water is now part of the equation."

Groups supporting the county said the Supreme Court gave little guidance on how to comply with the 1990 state Growth Management Act.

"The court issued the county a costly fix-it ticket," concluded Brian Hodges, an attorney with the conservative Pacific Legal Foundation, which filed a friend-of-the court brief in the case.

He said the county and its residents will go through another extended period of uncertainty about what the rules will be that govern rural development.

"We are concerned about predictability. The banks and insurance companies like predictability," he added. "Now the law is in a state of flux and this comprehensive plan won't be determined for quite some time."

With the decision, Kittitas and all other Washington counties now must do more than conclude that water is physically available below ground to serve new developments. They must now decide whether water is legally available before approving new subdivisions.

Kittitas County Commission Chairman Paul Jewell said the decision will affect counties across the state.

"The decision clearly states we have a larger role in considering the legality issue," said Jewell, adding the county's position has been that it's the state Department of Ecology's job. "Our concern was if we were to somehow determine legal availability and deny applications based on that and it's not within our scope of authority, we put ourselves at risk."

The court cited existing state law and its 2002 decision on the Campbell and Gwinn case, a Yakima County case, which concluded that housing developments could draw a total of no more than 5,000 gallons of water per day to serve an entire development.

Exempt wells for homes and rural economic development can use up to 5,000 gallons per day without obtaining a state permit. Also exempt from permit requirements are enough water for a half-acre lawn and garden and watering livestock. Although exempt from the permit, these wells are subject to regulation, including shutoffs, if they affect older, senior water rights.

Use of exempt wells and their impact on surface water owned by senior water right holders is a major issue in Kittitas County, where the Ecology Department in 2009 imposed a moratorium on new wells because of growth without evidence that water was available.

The moratorium allows new wells for individual homes and subdivisions if the applicant provides mitigation water, a share of a senior surface water right to avoid affecting existing rights to water for fish and irrigation.

The decision also upheld the Eastern Washington Growth Management Hearings board's finding that the county's comprehensive plan and development regulations lacked the necessary supporting evidence for allowing lots as small as three acres in rural and agriculture zoning districts.

The high court's decision sends the case back to the hearings board, where the county must provide supporting evidence to the board's satisfaction or change its comprehensive plan and development rules.

Environmental groups and Ecology applauded the court's decision, while development groups called it troubling.

"The decision recognizes, in my mind, the critical importance of marrying land-use decision-making with water supply and its availability," said Maia Bellon, program manager for Ecology's Water Resources Program. "To me, those are and should be inextricably linked."

Tim Harris, an attorney for the Building Industry Association of Washington, a construction trade group, said he is troubled by the court's directive to counties.

"Ecology's stance is that it is now up to the counties to implement water policy," said Harris. He said counties lack the expertise to do that.

Bellon said Ecology can provide a consultation role to help counties make land-use decisions involving water.

"In that situation, a county can be informed if there is a closure to a water system or the agency can help a county understand whether a subdivision is legitimately eligible to rely on the permit exemption," she said.

In addition to the water issue, the Supreme Court decision requires Kittitas County to provide additional information on details of its comprehensive plan and development rules as they affect rural areas. The plan allows lots as small as three acres in rural and agriculture zones, a density opponents cited as violating the state Growth Management Act.

Justice Susan Owens, who wrote the majority opinion, said the county failed to show how it arrived at the densities outlined in the plan.

She said counties are to be given deference in the planning under growth management, but that deference is not absolute.

Kittitas County did not provide a written record explaining its decision on rural areas, Owens wrote, and did not provide for protection of those areas. Further, the county didn't provide for a variety of rural densities or protect its long-term agricultural lands.

"There simply is no written explanation that articulates how the county's rural element harmonizes the goals and meets the requirements of the GMA," she wrote.

The Supreme Court overturned the hearings board on its rejection of an overlay zone for the county airport, north of Ellensburg.

Justice James Johnson wrote a dissenting opinion, concluding the county is entitled to deference and did comply with growth management rules. He wrote the court should have overruled the growth board and turned the comprehensive plan back to the county.

"This would allow the county's elected legislative body to make necessary adjustments to its plan and development regulations, rather than permit an unelected board to dictate planning requirements," he wrote.

Justice Pro Tem Richard Sanders agreed with Johnson's dissent. Sanders, who was on the high court when the case was heard before being defeated in the 2010 general election, took the place of his successor, Justice Charles Wiggins, on this ruling.

Justice Tom Chambers, a native of Wapato, filed a separate dissent. He agreed with the majority on the water issue, but said the county should be able to chart its own future on land-use issues.

The Supreme Court decision results from a series of appeals growing out of the growth board's 2006 decision finding the county out of compliance with the state Growth Management Act.

The case wound its way through Kittitas County Superior Court and to the state Court of Appeals, which consolidated all appeals and certified the case to the state Supreme Court. The high court heard arguments in the case last October.

* David Lester can be reached at 509-577-7674 or dlester@yakimaherald.com.

* For the full text of the decision, go to www.courts.wa.gov/opinions/?fa=opinions.disp&filename=841870MAJ