Washington State Groundwater Association

Ruling Stops Entiat Project: New Definition of Water Rights Could Limit Development Statewide

The following story appeared in the January 6, 2000, Wenatchee World newspaper. There is a confusing statement in the 3rd paragraph. The author of the article was contacted for clarification of the statement made. In 1958 the Treasure Haven subdivision was outside of the Entiat city limits. It has since been annexed into the city and is now inside the corporate boundary of Entiat. Ecology is holding that since the subdivision was outside the city in 1958, the date of the water right, Entiat cannot provide water to that area even though it is now inside the city.

ENTIAT — A change in the way the state Department of Ecology defines municipal water rights has halted an 85-home development here and could affect other Washington cities.

The new interpretation restricts water rights for cities to the city limits at the time the state issued a water rights certificate. Entiat got its certificate in 1958.

The state ruling stopped work at the Treasure Haven subdivision on Highway 97 and Howe Street, beyond Entiat’s city limits in 1958 and still outside the city. Prime Land LLC, the developer, expected to complete the first phase of the project before winter. (see NOTE above)

“This is a huge one because the situation is that the city, like others in the state, thought it could service growth,” said Entiat City Attorney Steve Smith. “This could impact almost every city in the state.”

Ecology officials based their decision on recent rulings by the state Supreme Court, even though those rulings did not specifically address municipal water rights. The court said water rights extended to water used at the time the certificate was issued, and not to the system’s capacity.
Ecology officials said they believe that same rule applies to cities, and interpret that to mean that water rights do not extend beyond a city’s boundaries at the time the water rights were given.

In both cases, the court said water systems were only entitled to the amount of water in use at the time the rights were issued.

But State Rep. Gary Chandler, R-Moses Lake, the chairman of the Agriculture and Ecology Committee, said the court specifically said the rulings did not apply to municipal water systems.
Chandler said Ecology wants to take away a city’s rights to water that it might use in the future, which is called inchoate water rights.

“If you do not let municipalities have that inchoate water right, you’ve shut down all growth,” Chandler said.

Entiat officials will meet with Ecology officials on Jan. 20, but may be in limbo indefinitely.

“We have to proceed very carefully because anything we do that is not within the bounds of the law or doesn’t make sense will get challenged in court,” said Carol Mortenson, an official in the Yakima office of Ecology.

Mortenson said she does not know how the issue will be resolved or how long it will take, although she told Entiat officials it would take five months back in August.

“It’s important to us here, we’re wanting to build an economic base and get some industry going and we’re really hamstrung by this,” said Entiat Mayor Wendell Black.

Mortenson said it might take legislative or judicial action to solve the problem. Ecology’s
interpretation of the Supreme Court ruling means many cities in the state may be exceeding their water rights, she said.

The worst-case scenario is that without a legislative or judicial fix, almost every city would have to go back and reapply for a water rights certificate in order to continue development, Mortenson said.

“Ecology doesn’t have the money or manpower to deal with this,” said Elaine Kirkpatrick, a development and marketing specialist with Prime Land LLC, the Treasure Haven developer. “They’re just hoping the Legislature will come up with a fix so they don’t have to go through each city individually.”

“It’s going to be a major problem and could hold up development in the whole state of Washington if we don’t get Legislative relief. Ecology is going to get farther and farther behind.”

Entiat, which gets its water from the Columbia River, received the letter from state Ecology after the developer filed its State Environmental Policy Act (SEPA) checklist for its proposed development. Mortenson said there are two other problems in the Entiat case. A water right based on system capacity means the pipes and pumps to deliver water must be in place at the time the right is issued, and that’s not the case in
Entiat. There also are environmental concerns because of endangered species found in the Entiat area.

“There is a really good chance that NMFS (National Marine Fisheries Service) and U.S. Fish and Wildlife will be unhappy about this because they will be taking more water out of the system than in the past,” Mortenson said.

Smith said Entiat will try to get a different ruling on its water rights, but that if the issue isn’t resolved by March 1, it would let Prime Land build its subdivision. Prime Land agreed to assume any liability for the action.

Chandler said state Ecology is picking on Entiat because it is a small city.

“It’s easier for them to pick on smaller entities with fewer voices,” Chandler said. “What do you think the people in Everett would do, or Issaquah?”

Mortenson said at least three other Central Washington cities — Granger, Naches and Riverside — have had developments halted over water rights issues.

She also said they are not being singled out, but are being notified of the problem when project developers file SEPA reports.

Chandler said he would resurrect a bill dealing with the water rights problem in the next Legislative session, which begins Monday. The bill was stalled in committee last year.

“It is an issue we need to take on and look at, because not only Entiat but every city in Washington could be affected,” Chandler said.

~ By Kathleen Gilstrap, World staff writer