Judge says Yelm must prove it has water

The city has lost the latest round in an apparent precedent-setting case that will determine when and to what level a city must prove it has the water to serve a planned development.

Yelm Mayor Ron Harding said Friday the city will appeal a ruling that overturns its preliminary approval of five subdivisions totaling 568 homes, townhomes and condominiums.

Superior Court Judge Chris Wickham ruled a condition placed on the preliminary approval of the subdivisions violated state law. The condition allowed the city to wait until someone applied for a building permit to prove it had enough water to serve the proposed development. He determined the city must show that proof earlier in the land-use process.

The final outcome could have statewide implications as cities continue to grow and drinking water becomes more scarce.

Channeler JZ Knight challenged the approval of the subdivisions on the basis the city did not have sufficient water to serve them and that could affect future development of her property.

A hearings examiner had granted preliminary approval of the subdivisions on the condition the city prove it has enough water to serve the development either "at final plat approval and/or prior to the issuance of any building permit." The City Council upheld his decision in February and Knight appealed to Thurston County Superior Court the following month.

The issues

The court challenge eventually focused on two questions: May the city of Yelm continue the practice of waiting until an individual requested a building permit to provide proof it has enough water to serve the proposed development? What level of proof must be shown?

State law states cities must determine "appropriate provisions" are made for such basic serves as public health, safety and "potable water supplies" before they approve subdivisions. The law fails to define "appropriate provisions" or where in the land-use process that must occur.

Preliminary plat approval of a subdivision allows a developer to grade, install utilities and roads and subdivide the property into lots. Final plat approval allows a developer to sell off the individual lots that will be built on after securing a building permit.

Wickham ruled the city must determine it can provide water to a development at the time of final plat approval. He remanded the subdivisions' approvals back to the city of Yelm to remove the "/or" in the condition to make it clear the city must prove water at the time of final plat approval.

But it's also clear from his five-page ruling that he struggled in his decision on whether the city's determination must be based on proof of a water right held by the city at the time of the final plat approval. He said it's likely the first time a court has addressed this question.

He wrote it "seems appropriate" to defer that determination on these five subdivisions until their final plat approval.

"If the determination were to be made today on this record, this Court would conclude the City would have to require a showing of approved and available water rights sufficient to serve all currently approved and to-be-approved subdivisions," he wrote.

Yelm reaction

Yelm city officials said Wickham exceeded his authority by making a ruling on a action that has yet to occur, namely consideration of the final plat approval for the subdivisions.

They argued that, if upheld, his ruling means cities would have to "bank," or set aside water, even for property that may never develop.

"If it falls on Yelm, it's going to affect other cities," City Administrator Shelly Badger said of the ramifications of such a ruling.

Ecology position

The state Department of Ecology, which regulates the public waters in the state, sided with Knight in a friend-of-the-court brief filed in the challenge.

The state agency said it's important "the cart does not get before the horse" by cities approving subdivisions without securing the water to serve them.

"Having water in place early in the process would also eliminate the possibility of a lot owner's expectations being dashed and his or her investment being stranded because there is no water to serve the actual lot," wrote Assistant Attorney General Maia Bellon, representing the agency.

For instance, they point that Yelm gave final plat approval to the first phase of Tahoma Terra, which includes 463 dwelling units. The city has issued 90 building permits after the developer transferred water rights to serve them. But Ecology notes the city doesn't have the water to serve the remaining lots.

Keith Moxon, the attorney representing Knight, said he was pleased with the decision.

Asked about the city's intent to challenge the ruling, he responded, "They have the right to appeal and get it sorted."

Yelm water history

Wickham also ruled the city was pumping more water than it had legal right since 2001 and doesn't have sufficient water rights to serve the five new subdivisions.

City official countered Ecology has given them several determinations on its legal water right, including an opinion last year that removed about 16 percent of its right. With this uncertainty, they argue the only reliable number is in its 2002 master water plan, which won state approval. The city has stayed within its legal water right using that number plus additional water rights it obtained since that time.

The city has undertaken efforts to conserve water, including using reclaimed water and plugging leaks in its system, and is working with Lacey and Olympia to secure additional water rights from a deep aquifer in the Nisqually basin, Badger said.

In its brief, Ecology noted one reason it was participating in the lawsuit was to prevent possible water rights violations by the city.

The two sides have reached agreement that the city will pump not more than 796 acre-feet this year, a limit Badger said the city is on pace to stay within. That limit would not provide enough water to serve the five subdivisions.

"Our job is to get people in compliance, and they are in compliance to the best of our knowledge. … That's success for us," said Tom Loranger, water resources manager Ecology's southwest regional office.

Christian Hill covers Lacey and Thurston County for The Olympian. He can be reached at 360-754-5427 or at chill@theolympian.com.