Water Supply and the Growth Management Act
April, 1998
by Tom McDonald
Office of the Attorney General
Ecology Division
629 Woodland Square Loop S.E., 4th Floor
Lacey, Washington 98503
(360) 459-6162
Reproduced by permission of author. Paper presented at the 1998 Environmental and Land Use Law Midyear: Keeping Your Environmental/Land Use Laws Practice Current.
TOM McDONALD Mr. McDonald is an Assistant Attorney General for the Ecology Division of the Washington Attorney General's Office. He is the chief attorney for the Water Section in the Ecology Division and represents the Department of Ecology primarily on water resource issues. He was formerly an Assistant Attorney General for the State of Colorado in the Federal and Interstate Water Section, and was also formerly the counsel for the Washington State Senate Agriculture Committee and Joint Select Committee on Water Resource Policy. Mr. McDonald is a graduate of Colorado State University and the University of Puget Sound.
In drafting this paper, Mr. McDonald is not representing or speaking on behalf of the Attorney General or the Department of Ecology.
Dreams have always shaped cities, and cities have always inspired dreams, and traditionally water has quickened them both.
Ivan Illich: H2O and the Waters of Forgetfulness
I. INTRODUCTION. GROWTH AND THE CONTROL OF WATER.
The allocation and management of water is based on a legal structure that is increasingly being recognized as an integral part of land use decisions. No longer can people take for granted that water will be available for their proposed use, whether it is for domestic, agriculture, or industrial purposes. The interplay between growth and water has obviously always existed; however, only recently has it become one of the more important land use issues as growth increases and the finite water resource becomes less available.
The purpose of this paper is to provide a preliminary discussion related to the responsibilities and legal requirements for managing water for growth. The most pronounced conflicts are in the rural areas where major water purveyors generally do not exist, although the issues arise in both rural and urban areas. As background, this paper will first give a brief analysis of a few basic concepts of water law. It will then discuss the statutory exemption for ground water withdrawals and its relationship to issues of growth. Finally, the paper will briefly discuss how the Growth Management Act, ch. 36.70A RCW and the Water Code, chs. 90.03 RCW and 90.54 RCW address water use and growth planning.
II. PRINCIPLES OF WATER LAW. [ This portion of the paper includes large excerpts of the state's briefing in Theodoratus v. Ecology , currently pending before the State Supreme Court.]
A. The Waters in the State Belong to the Public.
The waters within the state belong to the public, or are publici juris, and are not subject to private ownership. RCW 90.03.010. Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 583, 38 P. 147 (1894) [ In Rigney , the court was analyzing the rights to the use of water under the riparian doctrine of water use. Until the 1917 Water Code was passed, the state of Washington recognized the ability to create a water right under both the riparian and the prior appropriation doctrines. Under the riparian doctrine, water rights are created without putting the water to beneficial use, but rather are based on the ownership of land appurtenant to the watercourse. In 1985, the Supreme Court held that pursuant to the 1917 act, the state no longer followed the riparian doctrine, but must administer and regulate the waters pursuant to the prior appropriation doctrine only. In the Matter of Deadman Creek, Department of Ecology v. Abbott , 103 Wn.2d 686, 694 P.2d 1071 (1985).] ; Ecology v. Bureau of Reclamation, 118 Wn.2d 761, 827 P.2d 275 (1992); California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935). [The Desert Land Act, ch. 107, 19 Stat. 377 (1877), severed the water from the public domain. Thereafter, water was to be acquired only under the laws of the state. ]
A person may obtain a right to use the water of the state. This right does not vest a person with an ownership interest, but only authorizes "a usufructuary right," which is a right to use the water. Rigney, supra at 583; Bureau of Reclamation, supra at 761. 1 Wiel, Water Rights in the Western States, § 18 at 18, 20 (3d Ed. 1911).
In granting a usufructuary right to the water, the state retains control of its use and does not part with ownership. Id. Jicarilla Apache Tribe v. United States, 657 F.2d 1126, 1133 (10th Cir. 1981). An appropriator owns no title to the water, and only obtains a personal property interest in the "molecules" of water which the appropriator has diverted and has under his or her "control and possession". Bureau of Reclamation, supra at 767. If a right to use water is not being exercised, the water must remain in the stream to be available to satisfy other rights. State ex rel. Liberty Lake Irrigation Company v. Superior Court, 47 Wash. 310, 91 P. 968 (1907); Miller v. Wheeler, 54 Wash. 429, 103 P. 641 (1909); Elgin v. Weatherstone, 123 Wash. 429, 212 P. 562 (1923).
B. State Water Laws Codify the Common Law Prior Appropriation Doctrine.
The state of Washington follows the "prior appropriation doctrine" in the administration and regulation of water rights. In Re Alpowa Creek, 129 Wash. 9, 13, 224 P. 29 (1924). The prior appropriation doctrine was first developed in the gold mining days in California. Irwin v. Phillips, 5 Cal. 140, 147 (1855). It evolved out of the custom of water use in the arid West, where water has and increasingly continues to be considered a scarce commodity and cannot be hoarded for speculative purposes. Tarlock, Law of Water Rights & Resources, § 5.02(1) at 5-5; See also Coffin v. The Left Hand Ditch Co., 6 Colo. 443 (1882); Rocky Mountain Power Co. v. Colorado River Water Conservation Dist., 646 P.2d 383 (Colo. 1982). A person cannot appropriate water for speculative purposes. Id.; see Okanogan Wilderness League v. Ecology and Twisp, 133 Wn.2d 769, 947 P.2d 732 (1997).
Under the common law appropriation doctrine, water rights were established when a person had the intent to divert water for beneficial use, and exercised due diligence in constructing the diversionary works and applying the water to a beneficial use. Thompson v. Short, 6 Wn.2d 71, 106 P.2d 720 (1940); Madison v. McNeil, 171 Wash. 669, 19 P.2d 97 (1933); Tarlock, Law of Water Rights & Resources, § 5.10, at 5-54.
Once an appropriation was complete by the application of water to a beneficial use, the right "related back" to the date one showed the necessary intent to use the water. Hunter Land Co. v. Laugenour, 140 Wash. 558, 565, 250 P. 41 (1926); Morris, supra at 257; Tarlock, Law of Water Rights & Resources, § 5.14(2), at 5-69. This date is called the priority date for that right, and in times of water shortages it allows the user to continue to withdraw water to the detriment of all those who have later priority dates ("junior rights"). In turn, the junior user must cease withdrawing water if it will impair the use of water by those who have earlier priority dates ("senior rights"). Id.
In 1917, the State Legislature enacted the first comprehensive water code. Ch. 90.03 RCW. This law codified these elements of the appropriation doctrine into an administrative permitting process. Ch. 90.03 RCW; In the Matter of Deadman Creek, supra. In 1945 the same process was codified for groundwater. Ch. 90.44 RCW.
Under the Water Code, a person who wants the right to use water must file an application with Ecology. RCW 90.03.250. Ecology must investigate and determine whether the proposed use is a beneficial use of water, whether water is available for the use, whether the use of water will injure existing rights to the use of water, and whether the use will be in the public interest. RCW 90.03.290. A permit is issued only if Ecology answers all of these questions in the affirmative. Id.; Stempel v. Dept. of Water Resources, 82 Wn.2d 109, 508 P.2d 166 (1973). Ecology's decision to issue a permit is a discretionary act. Schuh v. Dept. of Ecology, 100 Wn.2d 180, 667 P.2d 64 (1983); Peterson v. Dept. of Ecology, 92 Wn.2d 306, 596 P.2d 285 (1979).
The code provides Ecology with the discretion to determine the periods of time for the diligent construction of a project and the application of water to beneficial use. RCW 90.03.320.
Actual construction work shall be commenced on any project for which a permit has been granted within such reasonable time as shall be prescribed by the department, and shall thereafter be prosecuted with diligence and completed within the time prescribed by the department. The department, in fixing the time for the commencement of the work, or for the completion thereof and the application of the water to the beneficial use prescribed in the permit, shall take into consideration the cost and magnitude of the project and the engineering and physical features to be encountered, and shall allow such time as shall be reasonable and just under the conditions then existing, having due regard for the public welfare and public interests affected; . . . .
RCW 90.03.320. [ This statute was amended in 1997 to provide additional criteria for permits issued for municipal water supply purposes. See p. 15, infra, for further discussion.]
Ecology may extend these time periods "for good cause".
And, for good cause shown, it shall extend the time or times fixed as aforesaid, and shall grant such further period or periods as may be reasonably necessary, having due regard to the good faith of the applicant and the public interests affected.
Id.
If a permit holder fails to comply with the terms of a permit or any extensions, Ecology must cancel the permit unless the person can show good cause to Ecology why the permit should not cancel. Id. A certificate will issue when conditions of the permit or its extensions are met. RCW 90.03.330. Issuance of a certificate is not an adjudication or final determination of the water right. Mack v. Eldorado Water District, 56 Wn.2d 584, 354 P.2d 917 (1960); Madison, supra at 680. [ Only a superior court has the authority in a general adjudication to determine the absolute validity of a vested right. Rettkowski v. Department of Ecology , 122 Wn.2d 219, 858 P.2d 232 (1993).] When the right is acquired by the appropriation of water, the right relates back to the date the application was filed with the department. RCW 90.03.340 (codifying the "relation-back" doctrine).
C. A Vested Property Right in the Use of Water is Created When an Appropriation is Completed by Application of Water to a Beneficial Use.
A "vested" water right is a term of art, defining a water right as a real property interest. See Rettkowski v. Department of Ecology, 122 Wn.2d 219, 228, 858 P.2d 232 (1993); Ecology v. Grimes, 121 Wn.2d 459, 474, 852 P.2d 1044 (1993); Neubert v. Yakima-Tieton Irrigation District, 117 Wn.2d 232, 237, 814 P.2d 199 (1991).
A water right "vests" into a real property right only when an appropriation is complete. Ickes v. Fox, 85 F.2d 294, 298 (1936), aff'd, 300 U.S. 82, 81 L. Ed. 525, 57 S. Ct. 412, rehearing denied, 57 S. Ct. 500, 300 U.S. 640. Lawrence v. Southard, 192 Wash. 287, 298-299, 73 P.2d 722 (1937); Ellis, 1 Wash. 572 (1889). An appropriation is not complete until the final steps in a project are finished and the water is applied to a beneficial use. Id.; Morris, supra at 252, 258; 2 Beck, Waters and Water Rights, § 14.03(d) (1991).
Beneficial use is the linchpin of the prior appropriation doctrine. Id. Tarlock, Law of Water Rights & Resources, § 5.16; p. 5-84. It is the actual use of water; which defines basis, the measure and the limit of a water right. Ecology v. Yakima Tieton Irr. Dist. (Acquavella III), 131 Wn.2d 746, 935 P.2d 595 (1997). Grimes, supra at 468; Wiel, Water Rights in the Western States, § 478, at 504 (1911). There can be no state based water right "absent such right being based on actual beneficial use." Ecology v. YTID, supra at 757.
Beneficial use refers to the quantity of water diverted by the appropriator, not to its availability in the source of supply. [Citations omitted.]
. . .
`Beneficial use' is a term of art in water law, and encompasses two principal elements of a water right.
First, it refers to the purposes, or types of activities for which water may be used.
. . .
Second, beneficial use determines the measure of a water right. . . . To determine the amount of water necessary for a beneficial use, courts have developed the principle of 'reasonable use'. Reasonable use of water is determined by analysis of the factors of water duty and waste. [Citations omitted.]
Ecology v. Grimes, supra at 468. (Emphasis added.) Tarlock, supra at § 5.16, 5-84.
Washington water law has always been interpreted as establishing a vested property right in water only to the extent the water is put to actual use.
Once appropriated, the right to use a given quantity of water becomes appurtenant to the land. The appropriated water right is perpetual and operates to the exclusion of subsequent claimants.
The key to determining the extent of plaintiffs' vested water rights is the concept of 'beneficial use' . . . . 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.
Grimes, supra at 467-468; quoting Neubert v. Yakima-Tieton Irrigation District, 117 Wn.2d 232, 237, 814 P.2d 199 (1991). See also Ecology v. YTID, supra; Lawrence v. Southard, 192 Wash. 287, 73 P.2d 722, 115 A.L.R. 1308 (1937); Ickes v. Fox, supra; In Re Alpowa Creek, 129 Wash. 9, 13, 224 P. 29 (1924); United States v. Ahtanum Creek, 330 F.2d 897 (1964).
Mere diversion and storage of water does not constitute a complete appropriation. Ickes, supra at 298; Lawrence, supra at 298. Recent articles on Washington water law confirm this analysis:
The appropriation of water is rooted in the idea of taking physical possession-removing water from a natural source and applying it to some useful purpose elsewhere. . . . [Citing State ex. rel. Reynolds v. Miranda, 493 P.2d 409 (N.M. 1972).]
. . . .
An appropriation does not ripen into a real property interest until the water is used.
11 Dufford, Washington Water Law: A Primer, "illahee", at 30 (1st & 2d Eds., 1995).
[A]n established water right . . . only consists of that amount of water historically put to beneficial use . . . .
Roe & Rasband, Changes to Water Rights, "The Natural Resources Law Manual," at 345 (1995).
D. A Person May Have an Inchoate Right for Water That Has Not Yet Been Put to Beneficial Use.
In contrast to a vested water right, a person may hold an "inchoate appropriative right" for water that has not been put to use. Generally, this right is defined as:
An incomplete appropriative right in good standing, that comes into being at the taking of the first step provided by law for acquisition of an appropriative right. It remains in good standing so long as the requirements of law are being fulfilled. And it matures into an appropriative right on completion of the last step provided by law.
1 Hutchins, Water Right Laws in the Nineteen Western States, at 226.
This definition is consistent with this state's statutory recognition of inchoate rights:
Nothing in this chapter contained shall operate to effect an impairment of any inchoate right to divert and use water while the application of the water in question to a beneficial use is being prosecuted with reasonable diligence, having due regard to the circumstances surrounding the enterprise, including the magnitude of the project for putting the water to beneficial use and the market for the resulting water right for irrigation or power or other beneficial use in the locality in question.
RCW 90.03.460. (Emphasis added.)
This language mirrors the language in the due diligence requirements of the Water Code, RCW 90.03.320; recognizing that these are rights for the development of a project which is not yet complete, and that the water has not been put to actual beneficial use. These inchoate rights remain valid as long as the person continues to complete the appropriation with reasonable or due diligence. Hutchins, supra at 584. Inchoate rights have been recognized in adjudications from the earliest days, but have never formed the basis for final confirmed rights because of their nascent character. See, e.g., In Re Crab Creek & Moses Lake, 134 Wash. 7, 235 P. 37 (1925). However, while one's rights are inchoate, it has long been understood that the holder thereof does at least have standing to object to other claims of right to waters from the same source. State v. American Fruit Growers, 135 Wash. 156, 237 P. 498 (1925); Brown v. Chase, 125 Wash. 542, 217 P. 23 (1923); In Re Stranger Creek, 77 Wn.2d 649, 466 P.2d 508 (1970).
The distinction between vested and inchoate water rights is important. This distinction is rooted in the primary intent of the prior appropriation doctrine and the Water Code, which is to maximize the beneficial use of water and provide for the effective management of the state's limited water resources. RCW 90.54.020(2); RCW 90.14.010; Ecology v. YTID, supra; In the Matter of Deadman Creek, supra.
The analysis in Deadman Creek is instructive because it explains the policy reasons for diligently applying water to beneficial use. Dormant rights, such as unexercised riparian rights, [ These cases discuss the inherent conflict between elements of the riparian doctrine and the appropriation doctrine, both of which were recognized under the common law as methods of obtaining a water right in this state. A conflict arose because of the element in the riparian doctrine which recognizes the establishment of a water right without the obligation to diligently put the water to use. State v. American Fruit Growers , supra ; Brown , supra ; Hunter Land Co. , supra ; In Re Sinlahekin Creek , 162 Wash. 635, 299 P. 649 (1931); Rigney v. Tacoma , supra , 9 Wash. 576 (1894); See also Corker and Roe , Washington's New Water Right Law - Improvements Needed , 44 Wash. L. Rev. 85 (1968).] caused a lack of certainty in administering water use and maximizing its use. Certainty can only be accomplished through the requirement that one exercise due diligence in putting water to use. Id. The court held that the Legislature, by enacting the 1917 Code, rejected the dormant nature of riparian rights. Pursuant to the standard of due diligence in the Water Code, the court held that fifteen (15) years from the enactment of the 1917 Water Code was a reasonable period of time for unexercised riparian rights to be put to use. Id.; See also In Re Alpowa Creek, supra.
While vested water rights provide certainty through the actual use of water, inchoate rights provide certainty only to the extent the actual use of water will occur within a reasonable period of time through the diligent construction and completion of the development. [ The individual project will dictate what period of time is required to establish diligence. The immediate use of water is not required; common sense applies in determining diligence for putting water to use. Morris , supra at 257; In Re Alpowa Creek , supra . This time period may be extended because of delays caused by matters "incidental to the enterprise." Grant Realty Co. v. Ham, Yearsley & Ryrie , 96 Wash. 616, 624, 165 P. 495 (1917). Personal matters such as lack of financial ability or illness are not excuses for delay in the use of water. Id. Whether the enterprise is for agricultural purpose or for growth of a city, this case-by-case analysis applies. See State v. Crider , 431 P.2d 45 (N.M. 1967).]
Ecology has in the past exercised its discretion to issue certificates for the inchoate rights of a municipality and large residential developments. By so doing, Ecology recognized the substantial nature of an inchoate right where the entity has fully constructed its pipes to the individual lots and thereby shown the necessary intent that it actually will be using the water within a reasonable period of time for the specific purpose and place of use authorized by Ecology. The risk of speculation or hoarding of unused water is so minimized that for administrative convenience Ecology has allowed certificates to be issued to these entities. In issuing certificates under these circumstances, Ecology has no intent to convert inchoate water rights to permanent, vested status. Even if it had such intent, it would be beyond Ecology's authority to confer a valuable property right for which the water right applicant has not met the legal requirements of beneficial use and due diligence. [ Agency actions which are contrary to the law or beyond the agency's authority are void. Rettkowski v. Ecology , supra ; Longview Fibre v. Cowlitz County , 114 Wn.2d 691, 699, 790 P.2d 149 (1990); Concerned Landowners v. King County , 64 Wn. App. 768, 778, 827 P.2d 1017, rev. denied , 119 Wn.2d 1008 (1992).]
E. The Statutory and Case Law in this State Make no Distinction Among Uses of Water for the Purpose of Determining When a Right to Use Water Vests into a Real Property Right.
When the Legislature passed the Water Code in 1917, it exempted no uses from the equal treatment under the requirements of the permit system.
[A]ll waters within the State belong to the public, and any right thereto, or to the use thereof, shall be hereafter acquired only by appropriation for a beneficial use and in the manner provided and not otherwise.
RCW 90.03.010.
In In the Matter of Deadman Creek, supra, the court held that in 1917 the Legislature specifically rejected the element of the riparian doctrine which gave some uses of water preference over other uses. The riparian doctrine has priorities for specific uses of water, the highest use being domestic or natural use. Morris, supra at 248. "Natural uses arise out of the direct necessities of life, e.g. household uses, drinking, washing and watering domestic animals, and these uses are of a higher priority than irrigation." Id. at 248.
The 1917 Water Code does not, the Court held, provide for the same privileges or exceptions for domestic use that were recognized in the riparian doctrine:
No exception is made for waters devoted to 'ordinary', 'natural' or 'domestic uses.'
Deadman Creek, supra at 692.
The court held that riparian rights, even for domestic uses, had to follow the foundations of the prior appropriation doctrine, and as such, water had to be put to beneficial use in order for the right to become an established right. Id. The court held that it was reasonable for all riparian owners to have put the water to use by 1932, which was 15 years after the 1917 Water Code was passed. After that time, any unused water rights reverted to the state. Id. at 697.
Recently, the supreme court rejected any preference for municipalities over other water uses when analyzing whether a municipality has met its burden to rebut the evidence of an intent to abandon a water right because of years of non-use. Okanogan Wilderness League v. Ecology and the Town of Twisp, 133 Wn.2d 769, 947 P.2d 732 (1997). The court held that the mere existence of the city does not rebut the presumption of an intent to abandon.
The supreme court's rejection of special treatment for uses under the 1917 code is consistent with two formal Attorney General Opinions. While these opinions are not controlling, they are given weight by the courts. Elovich v. Nationwide Insurance Co., 104 Wn.2d 543, 550, 707 P.2d 1319 (1985). In the first opinion, the Attorney General found:
[N]o exemption or exception is made to municipal corporations from operation of the act, and, . . . it was the intention of the legislature to require municipal, as well as other corporations, to comply with the act.
AGO 1927-28 at 876, 880.
The issue again arose in 1963, pursuant to a request for a formal Attorney General Opinion on whether the appropriation of a public domestic water supply requires a permit and is specifically subject to the requirements of due diligence under RCW 90.03.320. AGO 1963-64, No. 117. The Attorney General answered in the affirmative. A public utility district is required to follow the requirements of the statute the same as other types of beneficial use. Id. at 4.
F. Other Issues.
There are many other legal elements of water use and management, including loss of a right for non-use, transfers and changes, and instream flows. The other speakers will be talking in more depth about these issues.
III. THE GROUND WATER EXEMPTION AND THE 1997 AGO.
When the Ground Water Act was passed in 1945, it exempted from the permitting process, small withdrawals for single and group domestic use, not to exceed 5000 gallons per day. Under the State Department of Health's general standards of 800 gallons per home per day, the exemption would allow for a development of six homes to withdraw ground water without having to apply for or receive a permit from the state. Currently, 8500 wells are being drilled each year for the purpose of withdrawing groundwater under the exemption. Robert Caldwell, Six Packs for Subdivisions, the Cumulative Impacts of Washington's Domestic Well Exemption (1998)(publication pending). Since 1993, over 13,000 wells were drilled west of the Cascades, and about 11,000 were drilled east of the Cascades. Id. Using Health's standards, these wells represent a withdrawal of approximately 360,000 acre feet per year of groundwater. Id.
As it has become more difficult to receive a water permit because of delay in processing applications and the good possibility that applications will be denied because of lack of water supply, developers have used the ground water exemption to provide water for their projects. The use of the exemption for larger projects has raised many issues related to the interpretation of the ground water exemption and concerns that the exemption itself is allowing for the use of water that will impact other existing rights and instream flow resources. In an attempt to resolve some of these issues, the Departments of Health and Ecology requested a formal attorney general opinion asking for an interpretation of the ground water exemption as it would apply to certain factual situations. In October 1997, Attorney General Gregoire issued a formal Attorney General Opinion. A copy is attached as App. A. The summary findings of the AGO are as follows:
• Where a property owner wishes to develop land and supply the development with domestic water from several wells, and each well will pump less than 5000 gallons per day but all the wells together will pump more than 5000 gallons per day, the project is a single withdrawal of ground water and is not exempt from the permit requirements of chapters 90.44 and 90.03 RCW.
• There is no statutory provision for intertying, pursuant to RCW 90.03.383, water systems deriving from ground water withdrawals which were exempt from permitting pursuant to RCW 90.44.050; the intertie statute could be applied if the exempt withdrawals applied for a permit, or were consolidated (pursuant to Laws of 1997, ch. 446) with another water right with a permit or certificate.
• If the owner of a water right deriving from an exempt ground water withdrawal applies for a permit for the withdrawal pursuant to RCW 90.44.050, the Department of Ecology would apply the four-element test contained in RCW 90.03.290 in deciding whether to grant a permit.
• There is no statutory or other lawful basis for issuing a water rights certificate to the holder of a water right based on an exempt ground water withdrawal, unless either (1) the owner of the right applies for and receives a permit or (2) the exempt right is first consolidated with a right covered by a permit or certificate.
• There is no current statutory authority for transferring a water right deriving from an exempt ground water withdrawal to a different place of use and/or a different purpose of use pursuant to RCW 90.44.100, RCW 90.03.380 and related laws, unless (1) the owner of the right applies for and receives a permit or (2) the exempt right is first consolidated with a right covered by a permit or certificate.
Since issuing the opinion, the debate over water and land use permitting has only intensified. The analysis in the AGO directly addressed a growing trend among developers who were avoiding the permit process by drilling several wells and interpreting the exemption to allow them to withdraw 5000 gallons per day from each well. Therefore, any development was limited in size only the number of wells that were drilled, resulting in the development as a whole taking more than 5000 gallons per day without a permit. The AGO held that such use of the exemption was unlawful. The project as a whole must be considered, and if it would require more than 5000 gallons per day, regardless of the number of wells, a water permit is required.
In applying rules of statutory construction, the AGO analyzes and gives recognition to the comprehensive system created in the Water Code for allocating and regulating state water. Water use is authorized through a permitting process that requires an analysis of water availability, impairment to other rights, and the public interest. As an exception to this comprehensive permitting system, the exemption must be narrowly construed. See AGO at 5-7. The statute refers to the water use under the exemption as "small withdrawals". (See also, RCW 90.14.051(8), which refers to the use of water under the exemption as "such minimal uses".) Until this issue is resolved by the courts or by the Legislature, the AGO will guide the actions of state agencies.
The AGO has, however, been criticized by the development and real estate community. They believe it incorrectly interprets the language of RCW 90.44.050, and it is not consistent with the legislative intent. The debate may turn on simple rules of statutory construction. A March 1998 memo was written to attorneys for counties and health districts, from representatives for the Building Industry, the Association of Realtors, and the State Drilling and Groundwater Association. The memo provides several arguments refuting the AGO. In arguing rules of statutory construction, the memo states that the term "any" in describing "withdrawal" means that every withdrawal, by single or multiple wells, is exempt. In other words, each well is looked at separately, and one does not consider the total withdrawal for the intended use.
The building and real estate concerns may arise immediately through the local government land use permitting process. While the AGO did not analyze how the ground water exemption relates to land use decisions, the scope and use of the exemption directly impacts the local government's process for analyzing applications for subdivisions and building permits. Under the Growth Management Act, local governments cannot approve a subdivision proposal unless appropriate provisions are made for potable water supplies. RCW 58.17.110. Further, under RCW 19.27.097, a local government cannot issue a building permit unless and until it finds there is an adequate water supply necessary for the intended use of the building. See AGO 1992 No. 17 (attached as Appendix B). A local building department must satisfy itself that the source of water, whether permitted or under the exemption, will provide a reliable water supply in sufficient quantity and quality for a reasonable period of time. Id. at 11-12.
The AGO effects the local government's review of available potable water supply, particularly for subdivision approvals under RCW 58.17.110. The determining factor is whether a subdivision proposal is a "project" that, under the AGO, will require a permit to use water, or may use water under the exemption. The key question, therefore, is defining "project." As stated above, if a "project" will require greater than 5000 gallons of water per day, regardless of the number of wells, a permit is required. The AGO does not define "project" but does reference the case law developed under SEPA and the legislative intent to consider the impact of a proposal as a whole, and not separate it into small parts (based, for instance, on the number of wells). See footnote 6, p. 7. The AGO, however, also recognizes that it is responding to a specific fact pattern, and if the facts varied, "such as withdrawals independently made by different persons, or a series of separate withdrawals occurring over a long period of time, the answer might well be different." Footnote 7, p. 7.
In response to many questions from local governments on the Departments of Health and Ecology's implementation of the AGO, the agencies felt it was important to define "projects" subject to the AGO analysis. The agencies have provided their opinion in a letter responding to questions from a local health district. See letter attached to this paper at Appendix C. In that letter, the agencies state that they will use the parameters used in SEPA for defining a proposal:
There is a question that you have not asked but we believe directly follows from the above discussion and which an answer would hopefully provide some guidance to your client. This is the question of when is a development a "project". Although the AGO does not answer this question, we believe it is important to provide you with our interpretation. If the development is a "project", a water permit will be required prior to construction of the wells if the total amount to be withdrawn exceeds 5000 gallons per day.
We consider a "project" to include the development that is described in the application for the plat approval, which the local government will be reviewing to determine whether there is an adequate potable water supply. In reviewing development proposals to determine their project status, we will also be considering whether they fall within interpretation of a "proposal" under SEPA. This will involve determining whether a development, that is described either in a plat application or in some other form, is part of or intertwined with a larger development, such that it would be reasonable to consider the total anticipated groundwater withdrawal to satisfy the larger proposed development. The determination will generally require an analysis of whether the proposed development is an extension of or dependent upon an ongoing larger development. The agencies may be looking at the location of the development, its proximity to an ongoing larger development, its financial relationship with another proposed or ongoing development, and its use of or dependence on the capital structures of another proposed or ongoing development.
The agency's approach establishes a case by case analysis. The most likely opportunity for Ecology to provide this review is in the SEPA process when Ecology may analyze SEPA documentation provided by the local governments resulting from an application for a subdivision under RCW 58.17.110. At a minimum, clear and regular communication between the local permitting agency and Ecology will be necessary if the exemption, as interpreted by the AGO, is going to be consistently applied at the first stages of a development's local permitting process.
The Department of Health's review will occur primarily when it approves water source and water systems pursuant to State Health regulations. See ch. 246-290 WAC and 246-291 WAC. At the time it receives a submittal, Health will determine if the submittal or submittals are all part of the same "project". See Appendix C. A water right permit will be required when the total water quantity is greater than 5,000 gallons per day. Also see, WAC 246-290-130 and 246-291-100 (proof of any necessary water rights is required for approval of any new or modification of an existing source of water for a public water system); and AGO 1992, No. 17, App. B.
The agency letter also provides guidance on how the agencies intend to work with the local governments on resolving the water needs for developments that are currently or were intending to use the exemption for water, and which may be in question based on the AGO. The projects that are in the "pipeline" (by having some form of preliminary approval) raise the greatest and most urgent concern. The agencies have created a working group with the members of the Washington State Association of Counties for the purpose of working on a strategy for future decision related to the "pipeline" projects. The working group will first be trying to determine the scope of the issue by obtaining the data on the number of the "pipeline" projects and the status of water availability in the areas in which the projects exist. Based on this information, they hope to work out solutions that will hopefully minimize reconsideration of past decisions.
IV. THE STATUTORY PROVISIONS ON PLANNING FOR GROWTH AND WATER ALLOCATION.
Recently, there has been increasing discussion of how the fundamental principles of water law fit within the demands for growth and the requirements of the Growth Management Act. The debate appears to center on the question of whether the requirements of developing a plan under the Growth Management Act dictate when and where water will be made available, or whether such planning efforts and land use decisions should be based upon and directed by the availability of water. In other words, is water availability going to dictate how and when growth occurs? Neither the GMA nor the Water Resources Code explicitly require that growth must occur when and where water is both legally and physically available. However, specific sections in both the GMA and Water Resources Code provide some guidance, and indicate that water availability should be a fundamental element in land use planning.
A. 1971 Water Resources Act, Ch. 95.54 RCW.
The stated purpose of the 1971 Act is to allow for comprehensive water resource planning to assist both state and local governments in water management. Ch. 90.54 RCW. In managing the waters, the legislature set forth several "fundamentals". RCW 90.54.020. These fundamentals require the protection of perennial rivers and streams, encourage the practices of conservation to meet future needs, and recognize the need to develop water supply systems that serve the public generally and discourage the smaller systems.
All local governments, including counties and municipal and public corporations must carry out their duties and obligations in a manner consistent with the provisions of the 1971 Act. RCW 90.54.090. Ecology may also recommend land use management policy modifications to other agencies, including local government's water systems for the protection of the ground and surface water resources. RCW 90.54.130.
Recently, the Pollution Control Hearings Board affirmed Ecology's denial of an application to withdraw groundwater to serve a large subdivision in the urban growth area of Sequim. Cascade Investment Properties, et al. v. Ecology and Sequim, PCHB 97-47 and 97-48. The denial was based on Ecology's finding that the permit would be detrimental to the public interest because the subdivision could be served by the City of Sequim's municipal water system. This is consistent with the goals of RCW 90.54.020 and the GMA. This decision has been appealed to the Superior Court.
B. 1917 Water Code, Ch. 90.03 RCW.
Once the Department of Ecology has made a decision to issue a water permit, Ecology must use growth planning and related demand projections under the Growth Management Act, ch. 36.70A RCW, to prescribe the period of time for completion of a project for municipal water supply purposes.
In fixing construction schedules and the time, or extension of time, for application of water to beneficial use for municipal water supply purposes, the Department shall also take into consideration the term and amount of financing required to complete the project, delays that may result from planned and existing conservation and water use efficiency measures implemented by the public water system, and the supply needs of the public water system service area, consistent with an approved comprehensive plan under 36.70A RCW, or in absence of such plan, a county approved comprehensive plan under 36.70 RCW or a plan approved under ch. 35.63 RCW, and related water demand projections prepared by public water systems in accordance with state law. An existing comprehensive plan under ch. 36.70A or 36.70 RCW, plan under ch. 35.63 RCW, or demand projection may be used.
RCW 90.03.320.
This language was passed by the 1997 legislature in response to the request by municipal water providers to have greater certainty that their rights to use water were consistent with their growth planning. Substitute Senate Bill 5783; Laws of 1997, ch. 445 § 3.
C. The Growth Management Act, Ch. 36.70A RCW.
The planning requirements of the GMA under ch. 36.70A RCW provide some guidance on considering water availability for projected growth. Under the planning goals of RCW 36.70.020, there is a recognition that water resources should be considered in planning. Under this section, several goals are set forth that are to guide the development and adoption of the comprehensive plans and development regulations. Two of these goals are relevant to this discussion:
(10) Environment. Protect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water.
(12) Public Facilities and Services. Ensure that those public facilities and services necessary to support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum levels.
"Public facilities" are defined as including "domestic water systems." RCW 36.70A.030(12).
The mandatory elements of a plan include a land use element that must also protect the water quality and quantity of ground water used for public water supplies. RCW 36.70A.070(1). A capital facilities plan element requires a forecast of the future capital facilities necessary for the land use element. RCW 36.70A.070(3). And, the rural element requires provisions for essential public facilities, and the protection of surface and groundwater resources. RCW 36.70A.070(5)(b) and (c)(iv).
While the language in ch. 36.70A does not explicitly require a local government to find that a water right exists to satisfy the planned growth, the GMA goal to have necessary public facilities may allow for such an interpretation. The Growth Management Hearings Board has held that the GMA requires compliance with both the goals and the more specific requirements set forth in the Act. See, Taxpayers for Responsible Government v. City of Oak Harbor, Western Washington Growth Management Hearing Board, No. 96-2-0002, Final Decision and Order, (7/16/96).
In Taxpayers, the GMHB analyzed the GMA goal for public facilities and services. RCW 36.70A.020(12). This goal, the Board held, applies to all public facilities and services necessary to support a development. Public facilities "shall include at least domestic water systems for areas within and without urban growth areas." See WAC 365-195-070(3). The Board recognized that ensuring adequate water systems was consistent with and supported by the requirement that local governments make determinations of adequate water supplies when reviewing plat applications, and building permit applications, codified in RCW 58.17.110 and RCW 19.27.097, respectively. As stated above, a determination of adequate water supply must be based on Health's water quality standards and a valid water right. See AGO 1992, No. 17.
The GMA goals of requiring adequate facilities and services was also the basis for the Western Board's analysis of water rights and water availability in Loomis v. Jefferson County & Pope Resources, No. 95-2-0066, Final Decision and Order (9/16/95). The Board found that the planning analysis for a proposed Port Ludlow Interim Urban Growth Area (IUGA) needs to specifically and clearly define the quantity of water to be supplied. The Board recognized the concern of water rights and the local government's approval of plat applications. In its final ruling the Board held that the ordinance at issue was flawed for several reasons, including lack of proper review of the adequacy of water availability for the urban community.
In reviewing the adequacy of Whatcom County's plan and Interim Urban Growth Areas, the Western Board criticized the plan for not properly analyzing water resources and watershed impacts. C.U.S.T.E.R. v. Whatcom County, No. 96-2-0008, Final Decision and Order (Sept. 12, 1996). The Board found the "non-contiguous residential IUGAs are located in areas which are clearly not adequately served with public facilities and services." The county's proposal to plan the project now, but not actually develop until water and sewer become available, was rejected by the Board. "Scattered residential areas" violate the GMA unless the county can show the need and the necessary services. Id.
Therefore, it appears that the GMA goal of providing necessary "public facilities and services" is the basis for developing a plan that will not only provide for adequate water facilities, but should also provide for an actual potable water supply that is physically and legally available to serve the future growth.
V. CONCLUSION
The interrelationship between water rights and growth is being brought to the forefront as the water resources become a true limiting factor in growth planning in Eastern and Western Washington. To ensure that planned growth is based on the available water resources, it has become increasingly important to analyze water rights and available water supply as GMA plans are reviewed and revised. The urban areas will generally be supplied water under a permit authorized for the local water utility, city, etc. However, planning for growth in the rural areas will have to be based on considerations of actual available water. The groundwater exemption will not provide the certainty of an available water supply that it was interpreted to provide in the past. Under any circumstances, analyzing water availability at the time comprehensive plans are being drafted or amended, should minimize conflicts or great uncertainty when in the future a local government is considering a specific development proposal and having to make a determination of whether there is an adequate water supply.
Underlying the issue of growth and water is the deeper debate of whether the law correctly reflects societal values and policies related to water, growth and the environment. Because water is a finite resource, its allocation to one use, is logically at the expense of another use. The goal is to manage the resource to accomplish societal values which may inherently conflict: protection of instream resources and providing cheap, reliable water supply for people. The implementation of the GMA, along with the Water Code, may allow for an opportunity to develop the best possible management scheme under current law.
The period when the West could satisfy much of the country's rapacious appetite for natural resources is drawing to a close... Over the long run, certainly by the time our children's children are grown, our culture must come to grips with the inherent inconsistency of sustained growth on a finite planet.
Stewart L. Udall: Beyond the Mythic West
Because law can be described as societal values codified or decreed, careful students of law and public policy never study the face of a law in isolation. Instead, they look to the interests and ideas that propelled law into existence. They understand law and public policy by understanding their sources as well as their text.
Bates, Getches, McDonnell, Wilkinson: Searching Out the Headwaters, Change and Rediscovery in Western Water Law
Appendix C - Letter to Charles Zimmerman from Gregg Grunenfelder, Director, Division of Drinking Water, Department of Health and Keith Phillips, Program Manager, Water Resources Program, Department of Ecology, April 22, 1998 Re: Questions about AGO 1997 No. 6 implications for Chelan-Douglas Health District.