Crown W. Realty, LLC v. Pollution Control Hearings Bd.

7 Wash.App.2d 710

435 P.3d 288

CROWN WEST REALTY, LLC, Petitioner,

v. POLLUTION CONTROL HEARINGS BOARD, Respondent,andState of Washington, Department of Ecology, Respondent.

No. 35610-8-III

Court of Appeals of Washington, Division 3.

FILED FEBRUARY 26, 2019

Daniel J. Appel, Foreman Appel Hotchkiss, Zimmerman & Bau, 124 N Wenatchee Ave., Wenatchee, WA, 98801-2239, Mark Thomas Peterson, Peterson & Marquis, 1227 1st St., Wenatchee, WA, 98801-1913, for Petitioner(s)

Alan Myles Reichman, Ofc. of the Aty. General/Ecology Division, Po Box 40117, Olympia, WA, 98504-0117, Clifford Hiroshi Kato, Office of the Attorney General, Po Box 40117, 2425 Bristol Ct Sw, Olympia, WA, 98504-0117, Lisa M. Petersen, WA State Attorney General's Office (LAL), 800 5th Ave. Ste 2000, Seattle, WA, 98104-3188, for Respondent(s)

Adam Waldon Gravley, Jenna Rose Mandell-Rice, Van Ness Feldman LLP, 719 2nd Ave. Ste 1150, Seattle, WA, 98104-1700, Amicus Curiae on behalf of Washington Water Utilities Counsel

Thomas D. Mortimer Jr., Attorney at Law, 1325 4th Ave. Ste 940, Seattle, WA, 98101-2509, Sarah Ellen Mack, Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Ave. Ste 1100, Seattle, WA, 98121-2100, Amicus Curiae on behalf of Wa Public Utility Dist Assoc & WA Assoc of Sewer & Water Dist

Thomas Mann Pors, Law Office of Thomas M. Pors, 1700 7th Ave. Ste 2100, Seattle, WA, 98101-1360, Joseph Grant Carroll III, Attorney at Law, 12209 E Mission Ave. Ste 5, Spokane Valley, WA, 99206-4824, Amicus Curiae on behalf of Regional Cooperative of Pierce Cty & Spokane Aquifer Joint Bd.

Daniel James Von Seggern, Center For Environmental Law and Policy, 85 S Washington St. Ste 301, Seattle, WA, 98104-3404, Amicus Curiae on behalf of Center for Environmental Law & Policy

PUBLISHED OPINION

Fearing, J.—¶1 All the water that will ever be is, right now. National Geographic (Oct. 1993).

¶2 A writer generally employs an oxymoron as a literary device to create drama, reflection, or humor. This appeal asks us to review the ostensible oxymoron "residential use for a nonresidential population." RCW 90.03.015(4)(a). Since the Washington State Legislature inserted the ostensive oxymoron into a statute, serious practical consequences, rather than stylish emanations, attend the phrase. RCW 90.03.015(4) defines "[m]unicipal water supply purposes," in part as "a beneficial use of water ... [f]or providing residential use of water for a nonresidential population that is, on average, at least twenty-five people for at least sixty days a year." (Emphasis added.) The definition holds importance because Washington law does not subject the water right of a municipal water supplier to relinquishment for nonuse.

¶3 In this appeal, Crown West Realty, LLC (Crown West) challenges the Washington Pollution Control Hearings Board (Hearings Board) determination that its water system within the Spokane Business and Industrial Park (industrial park) does not qualify as a municipal water supplier. A ruling to the converse would allow Crown West to benefit from inchoate water rights and permit the transfer of the rights to the Washington water trust program in order to allow others to extract water from streams. We affirm the Hearings Board and deny Crown West’s appeal.

FACTS

¶4 This appeal concerns the Washington Department of Ecology’s (Department of Ecology or Ecology) refusal to recognize that Crown West, the current owner of the industrial park, holds a water right for municipal water supply purposes. Players in the appeal include administrative agencies Chelan County Water Conservancy Board (Water Conservancy Board or Conservancy Board) and the Hearings Board. The Department of Ecology, the Conservancy Board, and the Hearings Board all play a role in classifying, assessing, and administering water rights.

¶5 Our facts begin seventy-seven years ago. In 1942, our county’s first full year of combatancy in World War II, the United States Navy established a supply depot on the land now known and operated as the industrial park, located in Spokane Valley. In 1942, the Navy drilled three wells to supply the depot with water.

¶6 By 1945, one hundred and twenty-seven Navy personnel and Marines lived at the Spokane Valley Navy supply depot. Approximately 2,700 civilians worked at the depot full time. Buildings at the depot included an officers’ quarters, barracks, a cafeteria, and a fire station with residential quarters. The depot applied the well water for potable uses, for gardens, and for steam heat.

¶7 The United States Navy operated the Spokane Valley depot until 1958. In this litigation, the Department of Ecology admits the Navy’s use of the well water from 1942 to 1958 fulfills the definition of a "municipal water supply" under current Washington law. Administrative Record (AR) at 194.

¶8 In 1960, the United States Navy sold the Spokane Valley supply depot to Spokane Industrial Park, Inc. (the former park corporation or park corporation). Thereafter, the former park corporation transformed the supply depot into a business and industrial park. After the sale and until 1990, the industrial park’s residential structures remained inhabited by park corporation personnel or renters.

¶9 In 1970, with Washington’s adoption of new methods to claim and perfect water rights, the former park corporation filed, with the former Department of Water Resources, three groundwater right claims for industrial and domestic use, one claim each for the respective wells. The park corporation claimed a priority in all rights as of December 1942. One claim asserted a right to 1,350 gallons per minute with a yearly total of 2,178 acre-feet per year (AFY), but recognized the park then used only 675 gallons per minute and 1,089 AFY. Another claim asserted a right to 750 gallons per minute with a yearly total of 1,208 AFY and stated that the park then used all of the gallonage and AFY claimed. The final claim avowed a prerogative to withdraw from a well 1,050 gallons per minute with a yearly total of 1,694 AFY and further stated that the park used all of this gallonage and AFY. The sum of the three claims totals 5,080 AFY. The Department of Water Resources assigned the numbers G3-001087CL, G3-001088CL, G3-001089CL to the three claims. At some unknown date, the Department of Ecology likely issued permits based on the claims.

¶10 Also, in 1970, the former park corporation filed with the Department of Ecology a request for three water certificates to append to the three claims. The application did not seek to add to the amount of AFY, but instead requested certificates totaling 5,080 AFY. The former park corporation sought these three certificates in order to protect the property’s water rights in the event one or more of the earlier three claims, based on a priority date of 1942, failed. A water certificate gains a firmer legal standing than a water right claim predating the water codes. Nevertheless, the former park corporation’s certificates would only enjoy a 1970 date of priority.

¶11 In 1971, the Department of Ecology issued the former park corporation three certificates of groundwater right, Nos. 7129-A, 7130-A, and 7131-A, covering the three wells. Each certificate read, in part: "Spokane Industrial Park, Inc., ... has made proof to the satisfaction of the Department of Ecology of a right to the use of the public ground waters of the State of Washington" from the respective well. AR at 402, 404, 406. Each certificate noted the issuance of the earlier permit and that the former park corporation had perfected the right asserted under the permit. Each certificate also read that "this certificate of ground water right is specifically subject to relinquishment for nonuse of water as provided in RCW 90.14.150." AR 402, 404, 406. The certificates described the permitted use as "community domestic supply, manufacturing, and industrial use." AR at 402, 404, 406.

¶12 The former park corporation’s 1971 groundwater right certificates matched the quantities stated in the earlier water right claims except that two certificates, Nos. 7129-A and 7130-A, recognized only half of the annual quantities as their analog water right claims. In other words, two of the certificates respectively claimed a right to 604 AFY and 1,090 AFY. The certificates read in legalese that the "quantity of ground water under the right hereby confirmed for aforesaid purposes, is limited to an amount actually beneficially used for said purposes, and shall not exceed" the stated amounts. AR 402, 404, 406.

¶13 A Department of Ecology report of examination for the 1971 issuances of the former park corporation’s water right certificates documented seventy-eight businesses, with an estimated 2,500 employees, operating in the industrial park in 1970. The report of examination also declared that the three wells, integrated into a common water system, served two homes, one office, and a half-acre of lawn. Well 3 operated twenty-four hours a day. The other two wells ran only as needed.

¶14 In 1973, the former park corporation applied, from the Department of Ecology, for an additional groundwater permit. The application sought to drill a fourth well to withdraw up to 2,600 gallons per minute and 4,227 AFY of water. Ecology issued the permit, under the number G3-22023C, but reduced the amount of the water right to 4,194 AFY. In 1976, the Department of Ecology issued Certificate No. G3-22023C for this water right. The certificate reads:

This is to certify that the herein named applicant has made proof to the satisfaction of the Department of Ecology of a right to the use of the public waters of the State of Washington as herein defined, and under and specifically subject to the provisions contained in the Permit issued by the Department of Ecology, and that said right to the use of said waters has been perfected in accordance with the laws of the State of Washington, and is hereby confirmed by the Department of Ecology and entered of record as shown.

AR at 82 (formatting omitted) (...