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

FILED
FEBRUARY 26, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CROWN WEST REALTY, LLC, )
) No. 35610-8-III
Petitioner, )
)
v. )
)
POLLUTION CONTROL HEARINGS ) PUBLISHED OPINION
BOARD, )
)
Respondent, )
and )
)
STATE OF WASHINGTON, )
DEPARTMENT OF ECOLOGY, )
)
Respondent.
FEARING, J. —
All the water that will ever be is, right now. National Geographic
(Oct. 1993).
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)
No. 35610-8-III
Crown West v. Pollution Control Hearings Board
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.
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
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.
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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.
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.
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.
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.
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
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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.
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.
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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.
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.
A Department of Ecology report of examination for the 1971 issuances of the
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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.
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) (emphasis added). The certificate holds a priority date of
November 5, 1973. The certificate allows the use of 2,600 gallons per minute and 4,194
AFY and permits withdrawal of groundwater only from the one well in the industrial
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park. Finally, the certificate designates the use of water as “community domestic supply,
manufacturing and industrial use.” AR at 82-83. The certificate read:
This certificate of water right is specifically subject to
relinquishment for nonuse of water as provided by RCW 90.14.180.
AR at 83.
As of 1976, the former park corporation held water right claims, certificates, or
permits totaling a quantity of 9,274 AFY. Sometime thereafter the former park
corporation transferred the industrial park and its appurtenant water rights to appellant
Crown West. Crown West asserts that the former park corporation, itself, and tenants of
the industrial park have invested tens of millions of dollars to expand and improve the
park’s facilities to the benefit of the industrial park’s businesses. The Water Conservancy
Board investigated the full history of water use at the industrial park. According to a
Water Conservancy Board finding, the water rights attached to the industrial park have,
since 1942, consistently “served thousands of persons’ basic potable needs through lunch
rooms, bathrooms, and other potable requirements.” AR at 137. Nevertheless, the
Conservancy Board’s record does not identify any residential structures occupied
between 1990 and 1998.
In 1998, a hotel with sixty-five rooms, each accommodating up to five persons,
was constructed in the industrial park. Crown West contends the hotel has operated at
high capacity since. The Department of Ecology notes that the Conservancy Board
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record lacks any details as to the hotel’s occupancy, the duration of guests’ stays, or any
other information suggesting a residential pattern of occupancy.
At some unknown date or dates, the park added four state-of-the-art warehouses,
an office flex building, and retail space. These additions amount to more than 500,000
square feet of additional buildings on over 100 acres of park ground developed. By 2016,
the industrial park functioned as the primary place of business for 194 businesses with a
minimum of 5,000 employees served by 252 active water service connections spanning
institutional, commercial, business, school, daycare, recreational, and industry purposes.
Crown West asserts that industrial park inhabitants continue to use the water for a full
range of residential uses, including washing, cooking, drinking, bathing, and irrigation.
The Water Conservancy Board found that “[a]t the time of peak use, [the industrial
park used] 5874 acre-feet [of water from the wells] . . . when the park was still only about
2/3 built out with buildings.” AR at 98. The Department of Ecology observes that
neither the Conservancy Board’s decision nor any of its supporting documents identify
the date of peak water use at the industrial park or supply factual support for the annual
quantities of use asserted by Crown West.
The industrial park’s water system interties with the water system of Consolidated
Irrigation District #19, which provides thousands of residential service connections. The
intertie allows either the irrigation district or the park to draw water from the other’s
system in the event of an emergency. Neither party has yet to require the need of water
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from the other entity, but operators periodically open the valves between the systems to
ensure functioning of the intertie.
This appeal arises from Crown West’s 2016 applications for a change in its water
right for purposes of a transfer to Washington State’s trust water program operated by the
Department of Ecology. Washington State administers this trust program under chapter
90.42 RCW. This code chapter authorizes Ecology to hold water rights in trust for future
use without the donor’s risk of relinquishment. Water rights held in trust contribute to
stream flows and groundwater recharge, while retaining their original priority date,
because the owner of the water right agrees to keep its allotted water in a stream or
aquifer. The trust water right may later revert to the original owner.
Before a transfer of a water right into the Washington water trust program, the
trust program reviews the water right to assure that no five-year period passed without
use of the water as stated on the certificate, permit, or claim. RCW 90.42.040, .080. In
evaluating an application for a change or transfer of a water right, the trust program must
perform a tentative determination of the validity and extent of the water right sought to be
changed. RCW 90.42.040, .110. In the alternative, the water trust program determines if
sufficient cause for nonuse is identified under RCW 90.14.140, a statute that lists
exceptions to relinquishment. RCW 90.42.040.
As part of its applications, Crown West also sought to amend its certificates of
water right. When someone applies to amend its certificates or change the manner or
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place of use of the water, Ecology must conduct a tentative determination of the extent
and validity of the applicant’s water right pursuant to RCW 90.44.100.
Washington law has created water conservancy boards, available in designated
counties across the state. Most eastern Washington counties, but few western
Washington counties, have a conservancy board. A person seeking a transfer of a water
right may elect to file its application for the transfer with the conservancy board.
RCW 90.80.070. A conservancy board offers a faster option for a water right owner to
process an application for a change or transfer of a water right. RCW 90.80.005, .070.
The application must include information sufficient to establish to the Conservancy
Board’s satisfaction that a right to the quantity of water being transferred exists and a
description of any applicable limitations on the right to use water, including the purpose
of use. RCW 90.80.070(1). When a water right owner seeks to transfer or change the
water right, the conservancy board assumes the duties of the Department of Ecology in
reviewing the past and current use of the water right asserted under the claim, certificate,
or permit. RCW 90.80.055.
A conservancy board lacks final authority to authorize a transfer into the water
trust program. RCW 90.80.055(1)(b). Instead a water conservancy board processes a
transfer application and issues a record of decision for the review of the Department of
Ecology. RCW 90.80.070(4), .080(1). Ecology then renders a final decision to affirm,
reverse, or modify the conservancy board’s decision. RCW 90.80.080(4).
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In March 2016, Crown West filed four applications for “change/transfer of a water
right” with the Chelan County Water Conservancy Board. AR at 53, 58, 63, 68
(capitalization omitted). Each application sought to change the purpose of use, add a
purpose of use, change or transfer the location of use, add points of diversion or
withdrawal, and temporarily donate to the state trust water program for instream flows
and mitigation. The applications noted that Crown West’s current water rights were for
“community domestic supply, manufacturing, and industrial use.” AR at 54, 59, 64, 69
(capitalization omitted). Crown West impliedly deemed “community domestic supply”
to be synonymous with a “municipal” supply of water. In the alternative, Crown West
sought to recharacterize its use from community domestic supply to municipal supply.
One section of each application sought a term of donation to the trust water program
beginning April 1, 2016 and ending April 1, 2021, while another section of the form
sought donation from April 1, 2017 to April 1, 2022. The applications sought approval of
diversion of Columbia River water in Chelan County for landscape irrigation in favor of
KMO Holdings from April 1 to October 31 in each donation year. Crown West noted
that it owned 9,274 AFY of water, and it sought to temporarily donate 5,874 AFY.
As of the date of the applications, Crown West used only 3,400 AFY of water at
the industrial park. Therefore, in effect, Crown West proposed to transfer 5,874 AFY of
water it never used to allow another entity to take that amount from the Columbia River.
A questioning person might conclude that Crown West’s proposed donation gifted
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nothing of value. Crown West described its applications as mitigating instream use
presumably in the sense that the 5,874 AFY it donated would increase instream flow in
the Columbia River. Nevertheless, its wells had no connection to the river. Although
Crown West employed the Water Conservancy Board to approve its application, the
application would divert water from the river rather than conserve river water.
In response to the four applications from Crown West, the Water Conservancy
Board investigated the water use of Crown West at the industrial park. The Conservancy
Board issued a tentative determination of the validity and extent of Crown West’s water
right to ascertain the amount of water eligible for change and donation. In order to avoid
any relinquishment of its 9,274 AFY of water right from a lack of use, Crown West
contended that the industrial park’s distribution of well water fulfilled municipal water
supply purposes. Thus, as part of its review, the Water Conservancy Board needed to
assess whether the industrial park used its water for municipal water supply purposes.
In its report of examination, the Chelan County Water Conservancy Board wrote:
The applicant, Crown West Realty, LLC owns and operates the
water system that serves all parcels within the Spokane Industrial Park. All
rights held by the water system collectively authorize 9274 acre feet of
which the applicant wishes to temporarily place 5874 acre feet into trust for
instream flows to create mitigation for out of stream uses and use a very
small portion temporarily to do some landscape irrigation around an
industrial facility in Chelan County. Since its water right documents
reference only one well for each right the reserved quantities of each right
will need to be authorized from all of the four wells in order for the system
to function as designed. So the applicant requests authorization for a trust
donation and for adding the existing wells as points of withdrawal for all
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rights. The right was perfected serving a residential population of 130
persons. The application also requests that the purpose of use be
conformed to “municipal.”
....
The right was perfected as a municipal right and the applicant
requests that its authorized use be conformed to that designation.
....
c) For the trust portion all the acre feet from the three claims are
proposed to be temporarily placed into trust, as is 794 acre feet of the
additive certificate, G322023CWRIS. This portion of the right will
temporarily join other instream flow rights within the State Trust Water
Rights Program to create instream flow mitigation for other out of stream
uses. This component of the right is intended to take advantage of
temporary reductions in uses at the existing place of use to enhance
instream flows to create mitigation for other rights. . . .
Public Interest (groundwater only)
The proposed transfer is subject to RCW 90.44.100 and therefore,
cannot be detrimental to the public interest, including impacts on any
watershed planning activities. . . .
No detriments to public interest are presented by this decision. The
proposed changes will facilitate uses consistent with the relevant county
land use and watershed plans which are the relevant expression of the
public’s interest for uses at those locations. The authorized changes do not
appropriate new quantities. Only the changes being authorized are subject
to the public interest test.
AR at 95-96 (underline omitted). The Conservancy Board also wrote:
Any remaining portions of G3-22023CWR1S that have not been
beneficially used would have been certificated based on the developed
capacity of the system and would have been a “pumps and pipes”
certificate. These remaining quantities are also perfected as the result of
being exempt from relinquishment as part of a municipal water right. (See
Cornelius, et. al. v. Dept. of Ecology, et. al.[, 182 Wash. 2d 574, 344 P.3d
199] (2015) page 22 and the attached Analysis of Municipal Status of
Water Rights)
AR at 97. The Board added:
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The right continues to provide for residential uses for a non
residential population of approximately 6-7 thousand persons so it
continues to meet the municipal supply definition and has done so at all
times since its inception. The residential uses now include a hotel,
restaurants, mini marts, as well as bathroom and kitchen facilities for the
tenant’s thousands of employees. While the claims and certificates use the
term “domestic” and/or “community domestic” such terms are in this case
synonymous with “municipal” and should be conformed as such. To
qualify for placement into the State Trust program the right must either
have been used in the last five years or qualify for the municipal exemption
to relinquishment (RCW 90.42.080(4) and (11) and RCW 90.14.140(2)(d).
The subject rights were perfected by actual beneficial uses in at least the
amounts proposed for the trust and were used in the last five years. All
inchoate amounts are also deemed perfected by operation of law since they
are rights in good standing. (See Cornelius at page 22)
AR at 97. The Water Conservancy Board concluded:
The water proposed for change is valid to the full extent proposed
for change as set forth herein.
....
No portion of the right has been relinquished or abandoned. The
right qualities for the municipal exception to relinquishment. There has
never been an intent to abandon the right.
....
The proposal will create no detriments to the public interest. The
proposed changes will facilitate uses consistent with the relevant land use
and watershed plans.
AR at 98-99.
The Conservancy Board found that the highest amount of water ever applied under
the four rights was 5,874 AFY, which occurred sometime between World War II and the
early 1970s. Water use declined thereafter. The Conservancy Board further found that
the highest annual quantity of water actually used at the park since 1980 was 3,400 AFY,
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the amount used during 2016. Finally, the Conservancy Board concluded that, with
respect to Certificate No. G3-22023C, the certificate for the fourth well to withdraw
2,600 gallons per minute and 4,227 AFY, Crown West only ever used a small portion of
the right.
Despite its findings regarding the extent of use of Crown West’s water rights, the
Water Conservancy Board issued four conditional decisions, including reports of
examination, that tentatively granted Crown West’s four applications. The decisions
upheld the validity and eligibility for change of the full AFY of water rights.
The Water Conservancy Board also ruled that, assuming the industrial park had
not utilized for at least five years its entire allotment of 9,274 AFY of water, Crown West
had not relinquished any amount of its right because its water use met the statutory
definition of a municipal water supply. The Conservancy Board wrote:
The right was [Crown West’s water rights were] perfected with
demands that meet the definition of “municipal” water use since it served
the residential needs of 127 persons and it also served a non residential
population of 2700 for residential (typically potable) uses. . . . The right
continues to provide for residential uses for a non residential population of
approximately 6-7 thousand persons so it continues to meet the municipal
supply definition and has done so at all times since its inception. The
residential uses now include a hotel, restaurants, mini marts, as well as
bathroom and kitchen facilities for the tenant’s thousands of employees.
While the claims and certificates use the term “domestic” and/or
“community domestic” such terms are in this case synonymous with
“municipal” and should be conformed as such.
Clerk’s Papers at 10.
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The Water Conservancy Board reasoned that Crown West’s water right was for
municipal water supply purposes because Crown West “contemplated municipal use.”
AR at 136. According to the Conservancy Board, once a water right holder claims a
municipal use,
the right is immune from relinquishment. In 1970 and 1973, when
Crown’s rights were either claimed or certificated, their uses qualified as
municipal, as did the rights themselves. The claimed and authorized uses
must have been intended to continue to serve these uses and are therefore
perfected in the total quantities asserted. At the top of page 22, the
[Cornelius] Court points out that the certificates do not even need to be
fully used to be perfected in full and thus be available for changes/transfers.
AR at 136.
The Department of Ecology thereafter reviewed the Water Conservancy Board’s
findings. Ecology performed a mathematical calculation based on the findings.
According to Ecology, assuming the Conservancy Board correctly found that Crown
West used 5,874 AFY at its historical peak, water use had since declined at the industrial
park by more than 2,000 AFY. Because the four water rights specified a collective
maximum quantity of 9,274 AFY, the industrial park never used 3,400 AFY of the water.
The Water Conservancy Board tentatively approved all 9,274 AFY as valid and eligible
for change, such that Crown West could continue to use 3,400 AFY at the industrial park
and transfer 5,874 AFY to the state trust program for instream flows and the mitigation of
new out-of-stream uses. According to Ecology, the Water Conservancy Board’s
determination would anomalously allow 5,874 AFY of new water taken from rivers at
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distant locations while use continued without reduction at the industrial park.
The Department of Ecology further noted that, for the Water Conservancy Board
to find full usage of the AFY of water rights at the industrial park, the Conservancy
Board must have assumed that the park pumped each of the three initial wells
continuously at their maximum instantaneous quantities for twenty-four hours each day
every day of the year. Ecology observed that the Water Conservancy Board
inconsistently found that the current water demand at the industrial park was 3,400 AFY,
because it determined that a much higher quantity of water remained valid for a transfer.
On September 20, 2016, the Department of Ecology reversed the Water
Conservancy Board’s decision and denied all four of Crown West’s applications for
change/transfer of a water right. Ecology ruled that Crown West failed to demonstrate
that the water rights qualified as serving municipal supply purposes and ruled that the
Water Conservancy Board erroneously assessed the extent and validity of the water
rights.
The Department of Ecology’s decision listed seven grounds for its denial of the
applications for changes and donations into the water trust program: (1) an inadequate
tentative determination of the extent and validity of the four water rights, (2) a failure to
demonstrate that the four rights qualified as being for municipal supply purposes, (3) an
erroneous change of inchoate water and a mistaken allowance of an increase in
consumptive water use, (4) a failure to describe how other existing water rights within the
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place of use will be exercised, (5) a failure to affirm that the proposed changes would not
impair existing water rights, (6) a flawed consumptive water use analysis, and (7) a
failure to demonstrate that approval of the applications would not be detrimental to the
public interest.
In its ruling, the Department of Ecology relied on its POL-2030, the department’s
2003 Municipal Water Law Interpretive and Policy Statement, promulgated in 2007. The
statement sought to comprehensively address the entire 2003 Municipal Water Law
legislation. Portions relevant to the nonresident residential use language of RCW
90.03.015(4) declare:
[P]ursuant to RCW 34.05.230(1) this interpretive and policy
statement is advisory only.
....
RCW 90.03.015(3) & (4) DEFINITIONS of “Municipal Water
Supplier” and “Municipal Water Supply Purposes.” This section defines
water rights that are for municipal water supply purposes.
....
4. If one purpose of use on a water right is for a municipal water
supply purpose, then another purpose of use under the same water right is
for a municipal water supply purpose when it is a use generally associated
with a municipality.
....
7. If a municipal water supplier holds or acquires a water right not
for municipal water supply purposes, the purpose of use may be changed to
municipal water supply purposes under RCW 90.03.380. The statutory
tests for a change must be satisfied. Also, the beneficial use following the
change must meet a definition in this section. Changes under RCW
90.03.380 require a tentative determination of the extent and validity of the
water right proposed for transfer or change.
....
9. Ecology interprets the statute as requiring active compliance by
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conformance with the beneficial use definitions in RCW 90.03.015(4).
Examples of conformance with the definitions include but are not limited to
the following:
a. Conformance with the definition occurs where a water right
holder uses water for one or more of the categories of beneficial use
included in the definition of a water right for municipal water supply
purposes (e.g. the residential connection or nonresident population
thresholds under RCW 90.03.015).
....
c. A water right authorized for one or more of the categories of
beneficial use included in the definition of municipal water supply purposes
that has been integrated or consolidated through Ecology action(s) or
statutory procedure(s) (e.g. new permit, change decision, replacement or
new additional well, showing of compliance under RCW 90.44.100(3),
consolidation of rights for exempt wells under RCW 90.44.105) such that
two or more water rights or water sources have alternate, well field, non-
additive (formerly “supplemental”), or other relationships will be
recognized as in conformance with the definitions.
d. If a water right does not meet the definition of a water right for
municipal water supply purposes for 5 or more years, or does not otherwise
qualify for the relinquishment exception under RCW 90.14.140(2)(d), then
the water right would be valid only to the extent it had been beneficially
used during that period, with any non-use resulting in relinquishment of the
right unless the non-use is excused by one of the other exemptions to
relinquishment provided under RCW 90.14.140.
RCW 90.03.015(4)(a) DEFINITIONS - Defines Required Number of
Residential Connections and Non-Residential Population for Municipal
Water Supply Rights. The statutory definitions in this subsection do not
exactly match the Department of Health rules for Group A water systems
under WAC 246-290-020.
....
2. RCW 90.03.015(4)(a) provides statutory definitions for municipal
water suppliers holding water rights for municipal water supply purposes.
These definitions overlap Department of Health rules for Group A water
systems, but they are not exactly the same.
3. All municipal water suppliers under this section are Group A
water systems. However, not all Group A water systems are municipal
water suppliers.
....
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9. The Municipal Water Law does not include a minimum service
connection requirement for nonresidential connections. RCW
90.03.015(4)(a) defines a water right for municipal water supply purposes
in terms of nonresidential populations (residential use of water for a
nonresidential population of, on average, at least twenty-five people for at
least sixty days a year). Therefore, this category includes some Group A
non-community systems and excludes others, depending upon particular
factual situations.
10. Ecology interprets the phrase “residential use of water for a
nonresidential population, to mean that the full range of residential water
uses (e.g. drinking, cooking, cleaning, sanitation) are provided under the
water right. Further, such service is for temporary domiciles for non-
residents (an average of 25 or more people living there for more than 60
days per year). Examples of Group A non-community systems that might
hold water rights for municipal water supply purpose under this section
under particular factual situations could include vacation homes and
temporary farm worker housing.
11. The following Group A non-community systems would not
typically hold rights under RCW 90.03.015(4)(a) for municipal water
supply purposes under the residential water use for a non-resident
population definition:
o schools,
o daycares,
o churches,
o campgrounds,
o fairgrounds,
o restaurants,
o businesses and
o factories.
Actual determination of whether such systems hold water rights for
municipal supply purposes will depend upon the particular factual
situations.
AR at 143-47.
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PROCEDURE
Crown West appealed the Department of Ecology’s water rights determination to
the Hearings Board. In turn, both parties moved for summary judgment. The Hearings
Board granted Ecology’s motion. Although the cross summary judgment motions raised
numerous issues, the Hearings Board limited its decision to a ruling that Crown West’s
water right did not qualify under RCW 90.03.015(4) as municipal in nature. This ruling
negated the need to decide other issues. Other questions included whether the proposed
change would impair other water rights, increase consumptive use of water, or be
detrimental to the public interest, three additional requirements for a transfer to the state
trust water program.
The Hearings Board determined that Crown West failed to demonstrate that its
water rights qualified as being for municipal purposes through “active compliance” with
the definition of “municipal water supply purposes” under RCW 90.03.015(4). The
Hearings Board pulled the “active compliance” standard from POL-2030. AR at 144.
The Hearings Board concluded that, to benefit from this municipal water designation,
Crown West needed to show that the industrial park’s use of its well water served a
municipal purpose under the statute during every five-year period from inception of use
to the present. Even though the Department of Ecology conceded that the United States
Navy’s use of the water right entailed a municipal purpose, the Hearings Board
determined that Crown West’s recent use of the water right did not fall within the
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statutory definition. Therefore, the water right did not enjoy exemption from
relinquishment, and the Water Conservancy Board erred in allowing a transfer of 5,874
AFY of unused water to the state trust water program.
Crown West appealed the Hearings Board’s decision to the superior court, while
also filing a motion with the Hearings Board to issue a certificate of appealability directly
to this appeals court under RCW 34.05.518. The Department of Ecology did not oppose
the motion, and the Hearings Board together with our court commissioner granted direct
appeal to this court.
LAW AND ANALYSIS
On appeal to this court, Crown West contends the Hearings Board erroneously
denied Crown West’s water right a municipal water supply status for purposes of the
relinquishment exception. When challenging the Hearings Board’s ruling, Crown West
forwards several arguments. First, the water right holder need not establish “active
compliance” with the standard of “municipal water supply purposes” for every five-year
period during ownership of the right. Br. of Pet’r at 7. Second, the water right holder
need only comply with a beneficial use standard at the time the holder and the
Department of Ecology initially classified the water right. Third, the water right holder’s
claimed use or contemplated use, rather than actual use, controls the character of the
water right as being for municipal water supply purposes. Fourth, Ecology’s “active
compliance” standard adopted in POL-2030 conflicts with the streamlined process the
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Department of Ecology employs when reviewing a water right. Fifth, the Department of
Ecology mistakenly requires the nonresidential population, referenced in RCW
90.03.015(4), as demanding identity of people throughout the sixty days and overnight
stays. Sixth, Crown West’s intertie with Consolidated Irrigation District #19’s water
system qualifies Crown West’s water right as being for municipal water supply purposes.
The first three arguments conflate, and we will address the arguments together. We begin
though with a review of primary principles of Washington water law, which provides a
backdrop to a discussion of when should water rights be classified as serving municipal
water supply purposes in order to avoid relinquishment from nonuse.
Beneficial Use and Relinquishment
Washington’s water law, promulgated throughout the state’s history by statute and
case law, follows the western American doctrine of water rights by appropriation rather
than the eastern rule of riparian water rights. RCW 90.03.010; Cornelius v. Department
of Ecology, 182 Wash. 2d 574, 586, 344 P.3d 199 (2015); Ellis v. Pomeroy Improvement
Co., 1 Wash. 572, 578, 21 P. 27 (1889). Under the appropriation system, the user who
claims the right to appropriate water must actually do so. The water right holder must put
the water claimed under the right to beneficial use or it relinquishes the right.
RCW 90.14.160; Department of Ecology v. Theodoratus, 135 Wash. 2d 582, 587, 957 P.2d
1241 (1998). The legislature has declared:
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A strong beneficial use requirement as a condition precedent to the
continued ownership of a right to withdraw or divert water is essential to
the orderly development of the state.
RCW 90.14.020(3).
Under Washington’s 1917 Water Rights Code, all unclaimed water belongs to the
State of Washington. Washington law demands that a water right return to the state,
under relinquishment statutes, to the extent that, without cause, the water right holder
voluntarily fails to beneficially use all or any portion of the water right for a period of
five successive years. RCW 90.14.160-.180; Department of Ecology v. Acquavella, 131
Wash. 2d 746, 758, 935 P.2d 595 (1997). Accordingly, RCW 90.03.010 declares in part:
Subject to existing rights all 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. . . .
Relinquishment prevents water hoarding and promotes efficient use of the state’s limited
supply of water.
As well as being critical to establishing the existence of a water right, beneficial
use establishes the quantity of that right. A user acquires the right only to the quantity of
water actually put to use with reasonable diligence. Department of Ecology v.
Acquavella, 131 Wash. 2d at 755 (1997). “[B]eneficial use is ‘the basis, the measure, and
the limit’” of a water right. Department of Ecology v. Acquavella, 131 Wash. 2d at 755.
The requirement of a beneficial use applies even if the water right holder constructs
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facilities for diversion of a larger quantity of water than the holder uses. Department of
Ecology v. Theodoratus, 135 Wash. 2d at 593-95 (1998).
If a water right holder fails to beneficially use any or all of its right for five
successive years, the right holder loses all or a portion of the right unless it shows its
nonuse falls under one of the narrow categories in RCW 90.14.140.
RCW 90.14.140(2)(d); Department of Ecology v. Acquavella, 131 Wash. 2d at 758 (1997).
One exception, and the exception asserted by Crown West in this appeal, is water used
for municipal water supply purposes. The law determines relinquishment at the time of
the expiration of the five years of nonuse. Events occurring after the five-year statutory
period of a water right’s nonuse matter none because relinquishment already occurred.
RCW 90.14.180, .130; Cornelius v. Department of Ecology, 182 Wash. 2d at 617 (2015).
In Washington State, the law limits each water right to an amount of use in gallons
and acre-feet per year to a source of diversion, and to a purpose of use. The source of
diversion for groundwater is a discrete well. The source of diversion for surface water is
a spot along a stream, river, or lake.
Washington law classifies water uses into ten perhaps overlapping categories of
uses or purposes. RCW 90.14.031 declares:
(2) “Beneficial use” shall include, but not be limited to, use for
domestic water, irrigation, fish, shellfish, game and other aquatic life,
municipal, recreation, industrial water, generation of electric power, and
navigation.
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(Emphasis added.) One statute designates a differing list of beneficial uses:
(1) Uses of water for domestic, stock watering, industrial,
commercial, agricultural, irrigation, hydroelectric power production,
mining, fish and wildlife maintenance and enhancement, recreational, and
thermal power production purposes, and preservation of environmental and
aesthetic values, and all other uses compatible with the enjoyment of the
public waters of the state, are declared to be beneficial.
RCW 90.54.020 (emphasis added). Each water right must be designated for one or more
purposes depending on the actual employment of the water. A change to a water right’s
amount, source of diversion, or use requires the administrative process overseen by the
Washington State Department of Ecology and already described.
Municipal Water Law
We will later discuss in detail whether Crown West’s use of its water right
included a use for municipal water supply purposes. This determination looms critical to
whether Crown West relinquished any of its water right. We now briefly review the law
about a municipal water supply.
Since 1967, the Washington statutory scheme has treated a water right claimed for
municipal water supply purposes as immune from statutory relinquishment, while
nonmunicipal water rights may be relinquished through nonuse. LAWS OF 1967, ch. 233,
§ 18 (codified as RCW 90.14.180); cf. LAWS OF 1967, ch. 233, § 14 (codified as RCW
90.14.140(2)(d)). The legislature wishes municipal purveyors to be capable of meeting
future municipal needs despite a lack of exercise of the entire amount of the water right.
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RCW 90.14.140(2) now reads:
Notwithstanding any other provisions of RCW 90.14.130 through
90.14.180, there shall be no relinquishment of any water right:
....
(d) If such right is claimed for municipal water supply purposes
under chapter 90.03 RCW.
Despite this favorable treatment, until recently, our laws did not define “municipal water
supplier” or “municipal water supply purposes.”
In 2003, our legislature amended the water law act. Lummi Indian Nation v. State,
170 Wash. 2d 247, 251, 241 P.3d 1220 (2010); LAWS OF 2003, 1st Spec. Sess., ch. 5;
SECOND ENGROSSED SECOND SUBSTITUTE H.B. 1338, 58th Leg., 1st Spec. Sess. (Wash.
2003) (2E2SHB 1338). Litigants typically refer to the body of 2003 legislation
concerning municipal water as the “Municipal Water Law.” Cornelius v. Department of
Ecology, 182 Wash. 2d at 613 n.10 (2015) (Madsen, C.J., dissenting). The law defined
“municipal water supplies and supplier” and “municipal water supply purposes” for the
first time.
Under the 2003 Municipal Water Law, when requested by a municipal water
supplier or when processing a change or amendment to the water right, the Department of
Ecology shall amend the municipal water supplier’s water right documents and related
records to ensure that a water right for municipal water supply purposes, as defined in
RCW 90.03.015, is correctly identified as being for such purposes. Lummi Indian Nation
v. State, 170 Wash. 2d at 260 n.8 (2010). No portion of a right held or acquired by a
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municipal water supplier should be so identified without the approval of a change or
transfer of the right or portion of the right for such a purpose. RCW 90.03.560.
Time of Purpose of Use
We move further into our analysis of whether Crown West’s water right qualifies
for municipal water supply purposes. Crown West and its predecessors in interest
pumped groundwater from wells beginning in 1942. A preliminary question then ensues:
On what date do we assess whether the use of water at the Spokane Valley industrial park
constituted or constitutes a municipal water supply? We later inquire whether the
industrial park qualified as a municipal water supplier on that date. More importantly, we
then ask under what standard we determine if the industrial park beneficially used the
water right on the critical date.
We could rest our decision solely on the basis that Crown West does not qualify as
a municipal water supplier, except that the Department of Ecology agrees that the
industrial park water system qualified as a municipal water supplier from 1942 to 1958.
This concession begs the question: If Crown West once qualified as a municipal water
supplier does that qualification continue indefinitely or at least until it applied for a
change in use and transfer of diversion in 2016? We conclude that the law requires the
assessment of a municipal water supplier status as of the date that the water right holder
applies for a change in use or a transfer.
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Crown West contends that the water right holder need not show current or active
compliance with the dictates of a municipal water supply usage at the time it applies to
the Department of Ecology for a change in use of the water right or to enter the trust
water program. Instead, the date that the holder first claimed the water right or the date
of a certificated water right controls, and, if the holder then claimed its use constituted
municipal water supply usage, that claimage controls. Crown West may further argue
that, even if the purposes served by the water right did not qualify for municipal water
supply purposes at the time of the claim or certificate, the water right still qualifies if its
owner intended to use the water rights for municipal water supply purposes in some
indefinite future.
The controlling statute is RCW 90.03.015. The statute declares, in part:
(3) “Municipal water supplier” means an entity that supplies water
for municipal water supply purposes.
(4) “Municipal water supply purposes” means a beneficial use of
water: (a) For residential purposes through fifteen or more residential
service connections or for 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; (b) for governmental or governmental proprietary
purposes by a city, town, public utility district, county, sewer district, or
water district; or (c) indirectly for the purposes in (a) or (b) of this
subsection through the delivery of treated or raw water to a public water
system for such use. If water is beneficially used under a water right for the
purposes listed in (a), (b), or (c) of this subsection, any other beneficial use
of water under the right generally associated with the use of water within a
municipality is also for “municipal water supply purposes,” including, but
not limited to, beneficial use for commercial, industrial, irrigation of parks
and open spaces, institutional, landscaping, fire flow, water system
maintenance and repair, or related purposes. If a governmental entity holds
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a water right that is for the purposes listed in (a), (b), or (c) of this
subsection, its use of water or its delivery of water for any other beneficial
use generally associated with the use of water within a municipality is also
for “municipal water supply purposes,” including, but not limited to,
beneficial use for commercial, industrial, irrigation of parks and open
spaces, institutional, landscaping, fire flow, water system maintenance and
repair, or related purposes.
(Emphasis added.) We italicize several verbs to show that the statutory definition of
municipal water supplier and municipal water supply purposes is determined in the
present tense. Usage of this tense presumes a legislative intent to adjudge the character
of the water right in the present.
A legislative body’s use of a verb tense holds significance in construing statutes.
United States v. Wilson, 503 U.S. 329, 333, 112 S. Ct. 1351, 117 L. Ed. 2d 593 (1992);
State v. Stout, 362 Or. 758, 415 P.3d 567, 574 (2018). The use of the present tense in a
statute strongly suggests it does not extend to past actions. Carr v. United States, 560
U.S. 438, 449, 130 S. Ct. 2229, 176 L. Ed. 2d 1152 (2010). A statute’s undeviating use
of the present tense presents a striking indicator of its prospective orientation. Carr v.
United States, 560 U.S. at 449.
Our interpretation of RCW 90.03.015(4) coincides with a fundamental principle of
Washington water law. The statutory subsection refers to “a beneficial use of water.”
“Beneficial use” is a term of art in Washington water law that means an actual use of
water, rather than a potential future use. Department of Ecology v. Theodoratus, 135
Wash. 2d at 589 (1998). Presumably, this principle applies equally to exclude past use.
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Crown West characterizes an emphasis on the legislature’s use of the present tense
as dubious since statutory definitions are nearly always phrased in this tense. In so
contending, however, Crown West only mentions the verb “means” found in both
RCW 90.03.015(3) regarding the definition of “municipal water supplier” and
RCW 90.03.015(4) regarding the definition of “municipal water supply purposes.”
Crown West ignores all of the other present tense verbs found in RCW 90.03.015’s
definitions. Crown West also ignores decisions that emphasize the tense of verbs
employed in statutes.
RCW 90.14.140 exempts certain water uses from relinquishment, including
municipal water supply purposes. The statute declares:
“[S]ufficient cause” shall be defined as the nonuse of all or a portion
of the water by the owner of a water right . . . .
(d) If such right is claimed for municipal water supply purposes. . . .
RCW 90.14.140(1)(2)(d) (emphasis added). Based on this language, Crown West may
argue that the relevant question for purposes of relinquishment is whether a right is
“claimed” for municipal purposes and not whether the right is “issued” for municipal
purposes. This argument renders irrelevant any determination of the date on which we
determine the nature of Crown West’s use. Nevertheless, such a reading omits any
qualification for municipal water supply purposes since any party could “claim”
municipal water supply purposes without any facts supporting the claim. We doubt the
legislature intended a perpetual relinquishment exemption for all water rights when an
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entity merely contemplated or intended a municipal use, regardless of the actual
beneficial uses occurring under the right. Such a reading also conflicts with other
sections of the water code.
In City of Union Gap v. Department of Ecology, 148 Wash. App. 519, 195 P.3d 580
(2008), this court rejected a broad interpretation of the “claimed for” language of
RCW 90.14.140 in the context of the municipal relinquishment exemption. In
considering whether the city’s nonuse of its water right was excused under the municipal
relinquishment exemption, the court concluded that a water right holder must timely
assert its water right for municipal water supply purposes within the five-year period.
In recognition of its broad reading of the word “claimed” in RCW 90.14.140,
Crown West may limit its argument to a claimed water right for municipal purposes only
if the water right holder pursues such purpose with reasonable diligence. Nevertheless,
the statute does not include the term “reasonable diligence.” We acknowledge use of the
concept “reasonable diligence” in the setting of perfecting a water right after the
Department of Ecology issues a permit for a right. RCW 90.03.320, .460. Nevertheless,
we see no legislative intent in the water code to afford a water right holder, who uses
none of its water for municipal water supply purposes, the favorable status of municipal
water supplier based on a claim of such purposes if the holder reasonably pursues the
purpose for an indefinite time in the future. In addressing the exceptions to
relinquishment, we must consider that exceptions to statutory provisions are narrowly
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construed. R.D. Merrill Co. v. Pollution Control Hearings Board, 137 Wash. 2d 118, 140,
969 P.2d 458 (1999).
Assuming we reject the argument that the water right holder’s “claim” can qualify
the holder as a municipal water supplier, Crown West next contends that the use for
which the Department of Ecology authorized controls whether the use is one for
municipal water supply purposes. This argument also renders moot any decision of when
to assess whether the holder qualifies as a municipal water supplier. Again, we see no
legislative intent for such a construction of RCW 90.03.015(4). The statutory definition
employs the present tense and refers none to the application or authorization process. We
must construe the statutory definition narrowly.
According to amici, if the Department of Ecology determines municipal water
supplier status as of the date of the application for a change or transfer of the water right,
a municipality could lose a portion of its water right if it does not currently use all of the
right. In turn, amici note the inconsistency between this predicament and the statute that
excludes a municipal water supplier from the requirement that the water right holder
employ all of its water right in order to prevent relinquishment.
We need not address this concern since the facts of this appeal do not present
circumstances under which we must decide to what extent a municipality might lose a
portion of its water right by nonuse. We also question the analysis presented by amici.
RCW 90.03.015(4) does not require that a municipality “beneficially use” all of its water.
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Instead, the subsection refers to a municipal water supply purpose as a “beneficial use” of
water. The word “use” functions as a noun, not a verb, in this setting, and the word
“beneficial” performs as an adjective, not an adverb. Thus, RCW 90.03.015(4)
emphasizes the type of use, not the amount of use. The term “beneficial use” also
encompasses the types of activities for which water may be used. In re Rights of Surface
& Ground Waters of Marshall Lake & Marshall Creek Drainage Basin, 121 Wash. 2d 459,
468, 852 P.2d 1044 (1993). As long as the water is used for a beneficial use, the
relinquishment waiver applies. Therefore, one could conclude that the municipality need
only apply some of its use to a municipal water supply purpose in order to avoid a loss of
a portion of the unused right in order to avoid relinquishment.
Amici’s concern also conflicts with another statute, at least as to certificates issued
to municipalities before September 9, 2003. Water right certificates issued prior to
September 9, 2003, for municipal water supply purposes based on system capacity
remain in good standing. LAWS OF 2003, 1st Spec. Sess., ch. 5; 2E2SHB 1338; H.B.
REP. ON 2E2SHB 1338, at 1-2, 58th Leg., 1st Spec. Sess. (Wash. 2003).
The Department of Ecology asserts that “active compliance” with municipal water
supply purposes is required for the municipal water supplier to retain its preferred status.
The Department of Ecology further demands that compliance with the standard be
demonstrated for each five-year period from the right’s inception to the present. In short,
Ecology impliedly asks that we adopt its POL-2030.
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Crown West and amici note that the Washington water code never employs the
term “active compliance.” According to amici, the Department of Ecology’s
interpretation conflicts with the objective of the 2003 Municipal Water Law to provide
certainty to municipal water suppliers and to require increased water conservation and
efficiency. One might also wonder why the Department of Ecology needs to change the
statutory term “beneficial use” to “active compliance” and whether the concept conflicts
with the Supreme Court’s decision in Cornelius v. Department of Ecology, 182 Wash. 2d
574 (2015).
We particularly note that our ruling may conflict with POL-2030 section 9d:
If a water right does not meet the definition of a water right for
municipal water supply purposes for 5 or more years, or does not otherwise
qualify for the relinquishment exception under RCW 90.14.140(2)(d), then
the water right would be valid only to the extent it had been beneficially
used during that period, with any non-use resulting in relinquishment of the
right unless the non-use is excused by one of the other exemptions to
relinquishment provided under RCW 90.14.140.
We reserve approval or disapproval of POL-2030 for another day and perhaps another
court because of its irrelevance to our ruling.
The Department of Ecology emphasizes that this appeal arises from a change and
transfer of a water right sought by Crown West. The Department of Ecology argues that
Crown West may only change or transfer its right to the extent of its use. RCW
90.03.380 permits a change in rights only to the extent the holder has applied the water to
beneficial use. RCW 90.42.080 limits the quantity of water that can be placed into trust
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to the quantity actually used by the applicant. The Department of Ecology may be
correct, but the Hearings Board never reached this question. We also do not rely on
RCW 90.03.380 or RCW 90.42.080 because of our interpretation of RCW 90.03.015(4).
Municipal Water Supplier
We now analyze whether Crown West qualified as a municipal water supplier
when it filed its 2016 applications for a change of use and transfer. Each of Crown
West’s Department of Ecology certificates of water right declares the water use to be for
“community domestic supply, manufacturing, and industrial use.” AR at 402, 404, 406.
Each certificate also proclaims the right to be subject to relinquishment. As part of its
2016 applications for a change in use, Crown West seeks recharacterization of its water
usage to municipal water supply purposes. This relabeling would presumably avoid any
relinquishment of the water right.
The labeling of a water certificate as one for domestic use does not prevent
reclassification to municipal water supply purposes. Cornelius v. Department of Ecology,
182 Wash. 2d 574 (2015). We assume that a certificate for industrial or manufacturing use
may also be reissued for municipal uses. RCW 90.03.560 reads, in part:
When requested by a municipal water supplier or when processing a
change or amendment to the right, the department shall amend the water
right documents and related records to ensure that water rights that are for
municipal water supply purposes, as defined in RCW 90.03.015, are
correctly identified as being for municipal water supply purposes.
One likely will be a municipal water supplier if one is a government entity, but
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one need not necessarily be a governmental unit to qualify. Again, RCW 90.03.015
declares, in part:
(4) “Municipal water supply purposes” means a beneficial use of
water: (a) For residential purposes through fifteen or more residential
service connections or for 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; (b) for governmental or governmental proprietary
purposes by a city, town, public utility district, county, sewer district, or
water district; or (c) indirectly for the purposes in (a) or (b) of this
subsection through the delivery of treated or raw water to a public water
system for such use.
(Emphasis added.) WAC 173-505-030, a rule promulgated by the Department of
Ecology, repeats, but does not clarify, the definition.
Crown West claims that, as a nongovernment entity, it fulfills the language of
definitions (a) and (c). Crown West underlines that its water system delivers water to
5,000 to 6,000 employees who daily work at the industrial park and use the water for
drinking, cleansing, toileting, and even cooking. Crown West highlights that the
industrial park includes a hotel with overnight guests that use water for the same
purposes.
The Hearings Board found that Crown West does not connect its water system to
fifteen or more residences. Crown West does not challenge this finding on appeal. Thus,
we must decide whether the second half of the definition in section (a) in the statute
applies. We must discern whether Crown West provides “residential use of water for a
nonresidential population that is on average, at least twenty-five people for at least sixty
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days a year.” RCW 90.03.015(4)(a). We refer hereafter to this language as the “second
statutory definition” or simply the “definition.”
No case discusses the second statutory definition. Going further, no Washington
court has interpreted the legislature’s intent behind any portion of RCW 90.03.015(4)’s
definition of municipal water supply purposes. Other western states’ water laws lack
relevance because the law does not contain the same definition. Legislative history of the
statute does not assist because the history lacks any indication as to the types of places
falling under this definition.
We mention some rules of statutory construction. The purpose of statutory
interpretation is to determine and give effect to the intent of the legislature. State v.
Evans, 177 Wash. 2d 186, 192, 298 P.3d 724 (2013). When possible, we derive legislative
intent solely from the plain language enacted by the legislature. State v. Ervin, 169
Wash. 2d 815, 820, 239 P.3d 354 (2010). But we must also consider the context of the
statute in which the provision is found, related provisions, and the statutory scheme as a
whole. Department of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9-10, 43 P.3d
4 (2002). When the legislature has not defined a term, we may look to dictionary
definitions. In re Detention of J.N., 200 Wash. App. 279, 286, 402 P.3d 380 (2017), review
granted, 189 Wash. 2d 1031, 407 P.3d 1147 (2018). When the legislature uses two different
terms in the same statute, courts presume the legislature intends the terms to have
different meanings. State v. Barnes, 189 Wash. 2d 492, 502, 403 P.3d 72 (2017). A
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municipal water supplier enjoys an exception from relinquishment of the water right. We
construe exceptions narrowly. R.D. Merrill Co. v. Pollution Control Hearings Board,
137 Wash. 2d at 140 (1999).
The relevant language of RCW 90.03.015(4) and the parties’ respective
contentions raise the following questions concerning when an entity qualifies under the
second statutory definition. What constitutes a residential use of water? When does a
nonresidential population employ water for a residential use? Does residential use
include water used for drinking and cleaning by employees of businesses or industries?
What is a nonresidential population? Does a nonresidential population include
employees of businesses and industries? Does a nonresidential population include hotel
guests? Must the nonresidential population stay overnight? Must the nonresidential
population stay in temporary housing but have a permanent residence elsewhere? Must
the twenty-five people be the same people over a period of sixty days?
RCW 90.03.015(4) does not list examples of residential water use. The parties
catalogue residential uses of water as drinking, cooking, cleaning, flushing waste, and
watering grass. Compiling such a list, however, does not necessarily end our task of
discerning what constitutes a “residential use” under the second statutory definition.
After reading RCW 90.03.015(4) as a whole and perusing definitions for “residential
use,” we conclude that the term “residential use” within the second statutory definition
includes use of water within a residential setting. Thus, we disagree with Crown West
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that use of water for drinking, cleaning, toileting, or cooking within any setting
constitutes a “residential use” within the meaning of the statute. Use of water for
cleaning and drinking in an office, commercial, or industrial setting does not constitute a
residential use. Water for cleaning and drinking is attended to nearly every setting
including commercial, industry, and agricultural settings, such that Crown West’s broad
view of the term would have few, if any, limits.
RCW 90.03.015(4) sometimes attaches the indefinite article “a” to a noun or an
adjective and a noun. For example, the statute refers to “a beneficial use” and “a non-
residential population.” (Emphasis added.) But the statute omits the indefinite article
before the phrase “residential use.” The term “residential use” connotes a concept
narrower than “a residential use” in that the latter could refer to any of many residential
uses. The idea of “residential use” must then mean something different than uses for
which water can be employed inside a residence.
To repeat, RCW 90.03.015 holds two distinct definitions for “municipal water
supply purposes”:
(4) “Municipal water supply purposes” means a beneficial use of
water: (a) For residential purposes through fifteen or more residential
service connections or for 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 first definition includes the phrase “residential purposes” and the
second statutory definition employs the term “residential use.” Based on a standard rule
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of construction, “residential use” must mean something different from “residential
purposes.” We conclude that something different is the use of water within a residential
setting.
We rely on an Indiana decision’s analysis of “residential use,” in the context of a
restrictive property covenant dispute.
Residential is defined as “of or relating to residence or residences.”
Merriam-Webster’s Collegiate Dictionary 996 (10th ed. 1994). Residence
is defined as “the place where one actually lives as distinguished from
one’s domicile or a place of temporary sojourn.” Id. Our court has
previously determined that the “plain and ordinary meaning of ‘residential
purpose’” is “one in which people reside or dwell, or in which they make
their homes.” The people who rent Colucci's cabins use the structures for
eating, sleeping, and other typical activities associated with a residence or
dwelling place. Although we recognize that the renters’ occupation of the
cabins is only on a temporary basis and the definition of residential seems
to contemplate a more permanent presence, we find that this definition is at
odds with the covenant language explicitly allowing the rental or lease of
property. If the term “residential use” as used in the covenant language was
meant to only apply to permanent and not temporary rental of property,
then it would have been easy to explicitly state this and make the covenant
unambiguous. In Indiana, restrictive covenants are disfavored and are
strictly construed with all doubts resolved in favor of the free use of
property and against restrictions. We therefore conclude that, because the
language in the covenants is ambiguous, Colucci's short-term rental of its
cabins does not run afoul of the covenants.
Applegate v. Colucci, 908 N.E.2d 1214, 1220 (Ind. Ct. App. 2009) (most citations
omitted). We note that the Indiana decision mentions temporary and permanent rentals
and both constitute a “residential use.”
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From other jurisdictions come similar definitions of “residential use.” The
definition of “residential use” means “the use of property for living purposes.” Winn v.
Ridgewood Development Co., 691 S.W.2d 832, 834 (Tex. App. 1985). Thus, “residential
use” or property should not be for work purposes. College dormitories are residential
buildings occupied or intended to be occupied as a dwelling, and thus a dormitory is
included in an ordinance’s definition of “residential use.” Myers Park Homeowners
Association v. City of Charlotte, 229 N.C. App. 204, 213, 747 S.E.2d 338 (2013). A unit
providing an independent kitchen, bathroom, and sleeping facilities qualifies as a
“residential use.” Adams v. Town of Brunswick, 2010 ME 7, 987 A.2d 502, 507-08.
Accordingly, a “residential use” should include facilities for an overnight stay, but for
more than an overnight stay. A “residential use” should allow for independent living for
weeks, if not months. Some, but few, hotels include kitchen facilities. No evidence
supports a finding that the hotel inside the Crown West industrial park facilitates
independent living and functions as a temporary dwelling. We might, however, consider
an extended-day hotel to qualify.
Crown West contends that the Department of Ecology’s construction of
“residential use” essentially means that a “residential population” must reside in the
structures served by a municipal water supplier despite the statute referencing a
“nonresidential population.” Crown West may criticize our analysis as suffering from
this same anomaly or oxymoronic paradox since we hold that the term “residential use”
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means something akin to residing in a home when the second statutory definition applies
only to nonresidents. Nevertheless, in addition to giving import to the phrase
“nonresidential population,” we must provide meaning to the word “residential.” We
discern no inconsistency in our analysis, when viewed in the light that nonresidents may
temporarily use home-like environments as temporary residences.
We agree with the Department of Ecology that we should construe the term
“residential use” in light of the numbers and time constraints imposed on the
nonresidential population inside the second statutory definition. The statutory language
mentions “a nonresidential population that is, on average, at least twenty-five people for
at least sixty days a year.” RCW 90.03.015(4)(a). We need not discern the full
implications of this language or answer all of the questions posed by the parties because
of the limited circumstances of this appeal. Nevertheless, the language suggests more
than one or two overnight stays by a hotel guest and implies some temporary living
quarters.
Crown West argues that the legislature modeled RCW 90.03.015(4) after the
Department of Health regulations relating to noncommunity transient and nontransient
water systems under WAC 246-290-020(5)(b). For purposes of regulation, the
Washington Department of Health classifies public water systems into Group A systems
and Group B systems. WAC 246-290-020. A “Group A” system is a public water
system that provides service such that the system fulfills the definition of a public water
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system provided in the 1996 amendments to the federal Safe Drinking Water Act (Public
L. No. 104-182, § 101(b)). WAC 246-290-020(4). The regulation further categorizes
Group A water systems into community and noncommunity water systems. In turn, the
regulation categorizes noncommunity water systems as “nontransient systems” and
“transient systems.” The regulation reads:
(b) Noncommunity water system means a Group A water system
that is not a community water system. Noncommunity water systems are
further defined as:
(i) Nontransient (NTNC) water system that provides service
opportunity to twenty-five or more of the same nonresidential people for
one hundred eighty or more days within a calendar year.
Examples of a NTNC water system might include a school, day care
center, or a business, factory, motel, or restaurant with twenty-five or more
employees on-site.
(ii) Transient (TNC) water system that serves:
(A) Twenty-five or more different people each day for sixty or more
days within a calendar year;
(B) Twenty-five or more of the same people each day for sixty or
more days, but less than one hundred eighty days within a calendar year; or
(C) One thousand or more people for two or more consecutive days
within a calendar year.
Examples of a TNC water system might include a restaurant,
tavern, motel, campground, state or county park, an RV park, vacation
cottages, highway rest area, fairground, public concert facility, special
event facility, or church.
WAC 246-290-020(5).
When dissecting the Department of Health definitions of “transient” and
“nontransient” noncommunity water systems, we note that both definitions repeat in part
the requirement of “twenty-five people” found in RCW 90.03.015(4)’s second statutory
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definition. Nevertheless, neither of the Department of Health definitions includes the
qualifier “residential use.” As with the nonresidential population in RCW 90.03.015(4)’s
definition, the twenty-five people within the nontransient system must be nonresidential.
Nevertheless, WAC 246-290-020(5)(b)(i) demands that the twenty-five people be the
same people, whereas RCW 90.03.015(4) omits the word “same.” Under the regulation,
the nonresidential population must be present at least one hundred and eighty days. The
second statutory definition in RCW 90.03.015(4) requires a presence for at least sixty
days. Crown West highlights the examples given of nontransient systems, such as a hotel
and other businesses, and the identification of employees as nonresidential people.
The definition of “transient water system” in WAC 246-290-020(5)(b)(A), unlike
the definition of a municipal water supplier in RCW 90.03.015(4), expressly allows the
twenty-five or more people to be “different people” during the sixty or more days.
Examples of the transient system include a motel and restaurant, but no other businesses.
Crown West emphasizes WAC 246-290-020(5)’s definition of the transient water system
because the nonresidential population may differ from day to day and the examples
include a motel.
The purposes behind the definitions found in the Department of Health regulations
and those found in RCW 90.03.015(4) differ. The Washington State Department of
Health safeguards, under the federal Safe Drinking Water Act, the purity of drinking
water for purposes of public health. The Department of Ecology, who administers
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implementation of RCW 90.03.015(4), also holds responsibilities for clean water, but
under the federal Clean Water Act and in a broader sense concerning the environmental
condition of the state’s natural waterways. WAC 246-290-020(5) applies only to public
water systems, and Crown West owns a private water system. Since the Department of
Health regulations further dissimilar ends, we afford WAC 246-290-020(5) little import.
The Department of Ecology contends that “‘residential use of water for a
nonresidential population’” implies use by people who reside elsewhere.
RCW 90.03.015(4)(a). In turn, Ecology inserts into its POL-2030 the term “temporary
domicile” to characterize the concept of a “nonresidential population.” AR at 146.
According to Ecology, residential uses must serve temporary domiciles occupied by the
same nonresidents overnight for sixty or more days each. According to Ecology, Crown
West does not fulfill the standard with a hotel by aggregating populations of different
transients who may stay overnight for only a few days each. Ecology limits its examples
of facilities to vacation homes and farm worker housing. Our construction of the second
statutory definition partially coincides with Ecology, but we need not formally adopt the
policy statement or limit examples to vacation homes and farm worker housing.
Crown West astutely argues that an industrial park is more worthy of the
relinquishment exemption than vacation homes and thus more worthy of being deemed a
municipal water supplier. Presumably, Crown West emphasizes the jobs available at the
industrial park that stimulate the Spokane Valley economy. We are not convinced that a
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business and industrial park deserves more protection for its water system than a system
serving temporary housing. Anyway, the legislature should make this determination.
Streamlined Process
The Washington State Department of Ecology maintains a streamlined process to
determine the extent and validity of a water right, including whether the right holder
qualifies as a municipal water supplier. Crown West underscores Ecology’s position that
a water right can lose its municipal status if five years pass without the water having been
used for that purpose. Crown West argues that Ecology’s position conflicts with this
process. We need not address this argument since we have not adopted Ecology’s
position.
Intertie with Consolidated Irrigation District
Finally, Crown West contends that its usage of water also meets the definition in
subsection (c) of RCW 90.03.015(4) relating to water supplied indirectly to a public
water system. Crown West agreed with Consolidated Irrigation District #19, a
government entity, to supply, on an emergency basis, water for municipal purposes. The
irrigation district and Crown West fashioned an intertie between the two water systems.
The record shows, however, that Crown West has never supplied water to the irrigation
district. The two parties exchange minimal amounts of water periodically only to ensure
the proper functioning of the intertie’s valves.
The relevant portion of RCW 90.03.015 declares:
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(4) "Municipal water supply purposes" means a beneficial use of
water: ... (b) for governmental or governmental proprietary purposes by a
city, town, public utility district, county, sewer district, or water district; or
(c) indirectly for the purposes in (a) or (b) of this subsection through the
delivery of treated or raw water to a public water system for such use.
(Emphasis added.) We reject Crown West's contention. The statutory language assumes
that the water supplier actually delivers water to the public water system and the public
water system puts the water to a beneficial use. If we read the statute otherwise, a private
water supplier could enter an agreement to provide water to the public system and
construct the intertie solely for the purpose of immunizing its water right from
relinquishment.
CONCLUSION
We affirm the Pollution Control Hearings Board's decision with regard to Crown
West's applications for a change and transfer of use.
Fearing, J.
WE CONCUR:
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