Cedar River Water & Sewer Dist. & Soos Creek Water & Sewer Dist. v. King Cnty.
| Decision Date | 24 October 2013 |
| Docket Number | No. 86293–1.,86293–1. |
| Citation | 178 Wash.2d 763,315 P.3d 1065 |
| Parties | CEDAR RIVER WATER AND SEWER DISTRICT and Soos Creek Water and Sewer District, Appellants, v. KING COUNTY; Snohomish County; Alder Wood Water and Wastewater District; City of Algona; City of Auburn; City of Bellevue; City of Black Diamond; City of Bothell; City of Brier; City of Carnation; Coal Creek Utility District; Cross Valley Water District; Highlands Sewer District; City of Issaquah; City of Kent; City of Kirizland; City of Lake Forest Park; Lakehaven Utility District; City of Mercer Island; Northeast Sammamish Sewer District; Northshore Utility District; Olympic View Water and Sewer District; City of Pacific; City of Redmond; City of Renton; Ronald Wastewater District; Sammamish Plateau Water and Sewer District; City of Seattle; Skyway Water and Sewer District; City of Tukwila; Valley View Sewer District; Vashon Sewer District; Woodinville Water District; Shorewood Heights Apts., LLC, as successor in interest to Bayshore Shorewood G.P., Inc.; and the State of Washington, acting by and through the Washington State Parks and Recreation Commission, Respondents, and Muckleshoot Indian Tribe, Defendant. |
| Court | Washington Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Pierce County Superior Court; Honorable Thomas J. Felnagle.
Robert Tad Seder, Hillary Evans Graber, Civil Div. Snohomish County Prosecutor's, Everett, WA, Andrew William Maron, Scott Michael Missall, Short Cressman & Burgess PLLC, Leslie C. Clark, Calfo Harrigan Leyh & Eakes LLP, Wayne Douglas Tanaka, Joseph Zachary Lell, Ogden Murphy Wallace, James Edward Haney, Ogden Murphy Wallace PLLC, Brian Edward Lawler, Socius Law Group PLLC, Gregory Colin Narver, Seattle City Attorney's Office, Seattle, WA, Shelley Marie Kerslake, Christopher D. Bacha, Bob C. Sterbank, Kenyon Disend PLLC, Issaquah, WA, Daniel Brian Heid, Auburn, WA, Rod Paul Kaseguma, John William Milne, Mark S. Leen, Eric Clayton Frimodt, Inslee, Best, Doezie & Ryder, P.S., Cheryl Ann Zakrzewski, Bellevue, WA, Joseph Patrick Bennett, Hendricks–Bennett PLLC, Allen Joseph Hendricks, Attorney at Law, Edmonds, WA, Thomas C. Brubaker, City of Kent Legal Department, Kent, WA, William Raymond Evans, Kirkland, WA, Michael Paul Ruark, Attorney at Law, Lake Forest Park, WA, Kathleen H. Knight, Mercer Island, WA, Kinnon William Williams, Williams & Williams, PSC, Bothell, WA, Albert Anthony Abuan, Albert A. Abuan PLLC, Bainbridge Island, WA, Lawrence J. Warren, Renton, WA, James R. Schwartz, Attorney General's Office, Olympia, WA, Shawn J. Aronow, Snohomish County Public Utility District, for Respondents.
David Florian Jurca, Helsell Fetterman LLP, Seattle, WA, for Appellant/Cross–Respondent.
William E. Blakney, King County Prosecutor, Verna P. Bromley, King County Pros. Attys Office, Arthur Washington Harrigan Jr., Timothy George Leyh, Randall Thor Thomsen, Katherine See Kennedy, Calfo Harrigan Leyh & Eakes LLP, Seattle, WA, for Respondent/Cross–Appellant.
Shelley E. Kneip, Kitsap County Prosecutors Office, Port Orchard, WA, amicus counsel for WA Assoc. of Prosecuting Attorneys.
Jean Marie Wilkinson, Attorney Generals Office, Olympia, WA, amicus counsel for Washington State Auditor.
¶ 1 Ten years ago, King County urgently needed a new facility to treat sewage because existing treatment plants were near capacity. Procuring a location for a new sewage treatment plant was very difficult. After many years of negotiation and seven separate lawsuits, Snohomish County agreed to let King County build the Brightwater sewage treatment plant in south Snohomish County. As part of the settlement, King County agreed to provide a substantial mitigation package for the local Snohomish County community near Brightwater. The cost of the mitigation was included in the capital cost of the plant. Capital funding for the plant came mostly from the sale of bonds that were primarily secured by sewage treatment fees and capacity charges imposed on new sewage hookups. Two local utility districts that contract with King County for sewage treatment filed this suit arguing that the mitigation package was excessive, among many other claims. The trial judge largely rejected the districts' claims. We largely affirm.
¶ 2 In 1957, the Washington legislature authorized “cities and counties to act jointly” to meet certain “common problems in order that the proper growth and development of the metropolitan areas of the state may be assured.” Laws of 1957, ch. 213, § 1, currently codified in ch. 35.58 RCW. Among other things, the legislature was concerned that population growth “created problems of sewage and ... water supply,” especially relating to Lake Washington. Id. The next year, King County voters in the areas surrounding Lake Washington approved the creation of the metropolitan municipal corporation known as “Metro.” Mun. of Metro. Seattle v. City of Seattle, 57 Wash.2d 446, 449, 357 P.2d 863 (1960)(Metro). Metro was established “for the stated purpose of ‘metropolitan sewage disposal’ ... to address local pollution issues and to enhance water quality in the area's fresh and salt water bodies.” Clerk's Papers (CP) at 18663. By April 1959, Metro had adopted a comprehensive regional sewage disposal plan under which the existing municipalities would continue to collect sewage to be processed and disposed of by Metro for a fee. Metro, 57 Wash.2d at 449, 357 P.2d 863. Almost from the beginning, the proper scope and cost of sewage treatment has been the subject of conflict and litigation. See id. at 450, 453, 357 P.2d 863.
¶ 3 In 1974, the legislature amended and expanded chapter 35.58 RCW. Laws of 1974, Ex. Sess., ch. 70. Among other things, statutory references to “sewage disposal” were frequently changed to the more general “water pollution abatement.” Id. Even before that, Metro had performed many different water quality improvement projects, some not directly related to sewage disposal. These programs were not without controversy, and in 1988, “Metro formed a special task force, the ‘Water Quality Program Review Committee,’ to review Metro's responsibilities, authority, programs and funding relating to water quality.” CP at 18663. A.J. Culver, then the mayor of the city of Issaquah, chaired the committee, and the task force's report is commonly referred to as the “ ‘Culver Report.’ ” Id. “The Culver Report noted that Metro historically had spent about 3.5 percent of its operating funds in areas which arguably were ‘not absolutely required in order to achieve a regulatory requirement and/or fulfill component agency agreements' ” but that “these expenditures directlybenefited Metro.” CP at 18663–64. It “recommended that Metro continue to fund water quality programs including those not directly related to sewage treatment,” subject to a budget cap. CP at 18664. “This funding source for such expenditures became known as ‘the Culver Fund’ ” and, with some modification, exists today. CP at 18664–65.
¶ 4 In 1992, King County absorbed Metro. Now, King County has the power to dispose of sewage, abate water pollution, remove storm water, and improve water quality. RCW 35.58.200. King County executes these activities through its Wastewater Treatment Division, which, the trial court found, is operated as a proprietary utility. CP at 18662.
¶ 5 The plaintiffs, Cedar River Water and Sewer District and Soos Creek Water and Sewer District, are two of 34 entities that contract with King County for sewage treatment in return for an annual fee. These sewage treatment fees are paid into a “Water Quality Fund,” though it appears these fees are not the fund's only source of revenue.1 CP at 18668. Up to 1.5% of this fund is transferred annually to King County's Water and Land Resources Division for Culver Fund projects. The division and the county council decide which specific projects will be funded by the Culver Funds. Projects have ranged from an education program aimed at preventing people from flushing pharmaceuticals down their toilets to daylighting the Ravenna Creek and removing its waters from the treatment stream.
¶ 6 Many entities oversee and advise King County on how to manage its water and sewage problems and resources. Most relevantly, King County sewage utilities, including the plaintiffs, CP at 18664. This advisory council has recommended eliminating the Culver Fund several times, which King County has “categorically rejected.” CP at 18664–65.
¶ 7 Meanwhile, by the 1990s, King County was operating two regional and several smaller sewage treatment plants. The county projected that its treatment plants would be at maximum capacity by about 2010. The county spent eight years developing a Regional Wastewater Services Plan in collaboration with “a wide range of stakeholders” and concluded a new plant should be built in either north King County or south Snohomish County. CP at 5407. By 2001, the State Department of Ecology had approved King County's wastewater service plan, including the construction of a new plant, now called Brightwater.
¶ 8 In 2003, after “literally hundreds of meetings in Snohomish County and King County,” King County selected 114 acres in South Snohomish County for the treatment plant and issued an Environmental Impact Statement. CP at 5412, 1935. In apparent response, Snohomish County passed an ordinance that required any entity seeking to build an essential public facility, which includes sewage treatment plants, to obtain a conditional use permit that showed the plant would be compatible with surrounding land uses.2 King County challenged this ordinance under the Growth Management Act, chapter 36.70A RCW, beginning a series of seven lawsuits between the...
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