water

File photo by Sue Misao

An appeal of a Mazama land-use case could have significant consequences for state water law, according to the Washington attorney general and Department of Ecology.

At issue is whether a state law that provides for the use of 5,000 gallons of water for a residence or a business, a half-acre garden, and livestock – without a specific permit or water right – allows water for all four purposes or is limited to just one of the four, according to legal documents filed in the case.

The attorney general filed an amicus (friend-of-the-court) brief on behalf of the Department of Ecology in the case, which originated in a challenge to the Nordic Village development in Mazama. The brief also backs the developer’s position.

“This case presents issues of statewide importance for counties evaluating the adequacy of potable water supplies for new developments,” said the attorney general in the brief. “The evolving interplay between land use regulation by local governments and the regulation of the state’s water resources by Ecology is of fundamental importance to the state-wide management of water.”

There is no water quantity or limit attached to the stock-watering provision in the law. The state Supreme Court two years ago ruled it is permissible for a farmer in Franklin County to use the stock-watering provision for an industrial feedlot with tens of thousands of cattle.

This is the first case to reach the Court of Appeals since that ruling, making it an opportune time to clarify the intent of state law, said attorney Sandy Mackie, who is representing Nordic Village developer Bill Percich.

Ecology typically tracks cases that deal with water and apparently believed this case could be a good vehicle to clarify water law, said Mackie. He said some have interpreted the decision in the feedlot case to mean that all four water uses are permitted, while others believe it means only one of the four uses is allowed.

A neighbor of the Nordic Village site, Art Gresh, challenged the county’s rulings on the development, contending that the law permits someone to use those 5,000 gallons for a residence or a business, but not both.

The water for Nordic Village comes from a single lot on an adjoining parcel owned by Percich. A series of subdivisions, starting in 2007, allocated 2,880 gallons to that lot, which was further divided into six residential and six commercial lots. Water was restricted to 300 gallons for each residence and 180 gallons for each commercial unit. The remainder of the original 5,000-gallon allowance is reserved for three other lots on the adjacent parcel.

The complex, multi-layered case turns on the meaning of the word “or” in the exempt-well law, said Michael Brady, Gresh’s attorney. “It says ‘or’ – not ‘and’. That is precisely the issue,” said Brady. “Do you get all those water uses as a bundle of rights to mix and match, or just one of those uses? We are saying you only get one.”

In his filings, Brady points to earlier attorney general opinions and publications that contradict the amicus brief filed in this case. “Washington law does not allow the owner of an exempt well to transfer … water to a different location or for a different purpose, such as changing the use of water from domestic-home use to industrial …,” he quotes in his brief.

Mackie said that the law permits someone to use 5,000 gallons for a house, another 5,000 for a business, a “reasonable” amount for a garden, and water as needed for livestock.

In the amicus brief, the attorney general agrees with Percich’s interpretation. “In providing four distinct categories of permit-exempt uses, the Legislature authorized each category of use, and did not restrict them so that water can only be used under just one of the categories,” he wrote.

In fact, by restricting total water use at the12 units to less than 5,000 gallons per day, the developer is using considerably less water than he would be entitled to, said Mackie, who contends that Nordic Village could legally use 10,000 gallons, half for the residences and half for the businesses.

Gresh argues that the county never determined that the developer had a legal water supply for the project and that the county’s original decision must therefore be withdrawn.

 

Hinging on technicality

Whether the court actually takes up the water issue is another question, since the judges may uphold the Okanogan County Superior Court decision that the initial appeal – of a rezone of the Nordic Village property – was filed too late.

“Normally, if you fail the procedural step, the case is moot,” said Mackie. “But the court is authorized to give an advisory opinion on the merits if it is of substantial public interest. Courts can – and do – do that in a limited number of cases.”

The case is scheduled for oral arguments – 15 minutes for each side – at the Court of Appeals in Spokane on Tuesday (Sept. 10). The Court of Appeals typically decides a case in about six months, said Mackie.