By PEGGY STEWARD, Capital Press Staff Writer, The Capital Press , 10/20/2000
Local water conservancy boards, established by the Washington State Department of Ecology to help process water rights applications, have limited authority, according to a court ruling.
Thurston County, Wash., Superior Court Judge Daniel Berschauer issued the oral opinion from the bench. The case was a lawsuit brought earlier this year against ecology by the Center for Environmental Law and Policy and the Washington Environmental Council, two Seattle-based environmental interest groups.
In 1997, the Legislature passed a bill that allows county governments to establish local water conservancy boards to process applications to modify existing water rights.
The boards were an attempt to chink away at the logjam of water right applications statewide. Approximately 7,000 water-right applications are awaiting decisions throughout the state, ecology reports said. About 1,700 of the applications are requests to modify existing water rights.
In 1999, ecology adopted a rule that outlined how the boards could be formed and how they could operate. So far, ecology has approved
and trained boards in Adams, Benton, Chelan, Douglas, Ferry, Franklin, Grant, Klickitat, Lewis, Lincoln, Okanogan, Spokane, Thurston, Walla Walla, Whatcom, Whitman, and Yakima counties.
In their lawsuit, the environmental-interest groups alleged ecology's rule gave more authority to the boards than was allowed by law.
In defending against the lawsuit, ecology argued that the Legislature intended broader authority for the local water conservancy boards. A complicating factor was that parts of the law, as passed by the Legislature, were vetoed by Gov. Gary Locke.
Later, Locke wrote a letter to clarify what he wanted to veto. But Locke's vetoes stripped away some of the powers intended by the Legislature, the judge said.
In his Sept. 8 oral ruling, Judge Berschauer said the boards could not make decisions on purpose of use changes. A change from irrigation to municipal or domestic use, for example, would have to be decided by ecology, not a local board.
The boards could decide changes in location of use, including a change in a point of diversion if it were relevant to the change in location of use, the judge said.
The judge agreed with ecology that conservancy boards may decide on applications that don't involve a transfer in the ownership of the water right. The boards can't approve new water rights.
"We are pleased with several aspects of the judge's ruling, and disappointed in others," said Keith Phillips, who manages ecology's water-resources program. 'We firmly believe that the boards are essential to helping us achieve our goal of getting water to where and when it's most needed for farmers, people, fish or other economic and environmental uses."
The environmental interest groups who sued ecology were pleased with the ruling. Water rights are state issues, not local ones, said Robert Caldwell, director of the Center for Environmental Law and Policy. Irrigators in Skagit County have a say over water resources in the Columbia Basin, and Columbia Basin residents have a say on how the city of Seattle handles its Cedar River watershed, Caldwell said.
The volunteer board members are not qualified to handle very technical water issues, he said.
Generally, an oral ruling from the bench is followed by a judge's written order based on a report agreed upon by both sides in the case, Caldwell said. Or, if the sides disagree, a hearing could be held. But several other interested parties have asked to be intervenors in the case, and their attorneys will ask the judge to change his oral ruling.
Trendwest Resorts, a proposed 6,000-plus-acre resort in Kittitas County, has been buying agriculture water rights to transfer to domestic use. Trendwest attorney Joe Mentor, who agrees with ecology that the judge's ruling is ambiguous, has filed a motion to intervene in the case.
Trendwest has bought agricultural water rights on the mainstem of the Yakima River and its tributaries. It wants to transfer the mainstem seasonal rights for year-round domestic and irrigation use, Mentor said. The tributary water rights would be transferred to the state water trust to offset consumptive use increases on the mainstem, he said.
Trendwest would like to see those transfer applications acted upon by a water conservancy board being considered by Kittitas County commissioners, Mentor said. If the judge's ruling stands, the board could not process Trendwest's change-of-use application. That could mean delays before the multimillion dollar resort could begin construction.
DOE is waiting for the judge to issue a written ruling before it decides how to proceed, said Peggy Clifford, ecology environmental planner.
The judge made no indication his ruling would be retroactive and affect decisions already made by the boards, Clifford said. In the absence of a written ruling, ecology will continue to consider applications that are in various stages of the decision making process, she said,
When a written ruling is issued, ecology could appeal, or it could change its rule governing the water conservancy boards.
A court date has been set for Nov. 16 for attorneys to present further arguments in the case.
The Legislature is expected to act to find a solution early in 2001, said Rep. Gary Chandler, R- Moses Lake.
Some small towns, such as Warden, have counted on transfers of water rights from agriculture to municipal use to survive, he said. Most water board members have experience with water issues and are qualified to make transfer and change decisions, he said.
'Local boards can work," Chandler said.
He predicted legislation clarifying the boards' authority would meet stiff opposition from environmental-interest groups.
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