State, Dept. of Ecology v. Campbell & Gwinn

Decision Date28 March 2002
Docket NumberNo. 70279-9.,70279-9.
Citation43 P.3d 4,146 Wn.2d 1,146 Wash.2d 1
CourtWashington Supreme Court
PartiesSTATE of Washington, DEPARTMENT OF ECOLOGY, Appellant, v. CAMPBELL & GWINN, L.L.C., a Washington Limited Liability Company; and E.A. White and Beverly White, husband and wife, Respondents.

Christine Gregoire, Attorney General, Brian Faller, Asst., Olympia, for Appellant.

Flower & Andreotti, Patrick Michael Andreotti, Charles Camillus Flower, Yakima; Bullivant, Houser & Bailey, Jerret E. Sale, Deborah Lynn Carstens, Seattle, for Respondent.

Christine Gregoire, Attorney General, Jay J. Manning, Asst., Jennifer Tanya Barnett, Asst., Mary E. McCrea, Asst., Olympia, Amicus Curiae on Behalf of Center for Environmental Law.

Don Le Roy Anderson, Okanogan, Amicus Curiae on Behalf of Okanogan County.

Frederick Alan Johnson, Wahkiakum County Prosecutor, Cathlamet, Amicus Curiae on Behalf of Wahkiakum County.

Kristopher Ian Tefft, Olympia, Amicus Curiae on Behalf of Building Industry Asso. of WA.

Larry Dean Stout, Olympia, Amicus Curiae on Behalf of Washington Association of Realtors.

Greg Overstreet, Olympia, Amicus Curiae on Behalf of Washington Ground Water Assoc.

MADSEN, J.

RCW 90.44.050 provides an exemption from groundwater permit requirements for withdrawal of groundwater for domestic uses of 5,000 gallons or less per day. The Department of Ecology challenges the trial court's determination that the exemption applies where a developer of a residential subdivision proposes multiple wells that will individually serve each lot in the development. Each well is proposed to withdraw less than 5,000 gallons per day, but together the wells will withdraw more than 5,000 gallons per day. Because the statute limits the exemption to one 5,000 gallons per day withdrawal whether the water will be used for single or group domestic uses, and because the exemption is from permit requirements which otherwise apply prior to construction of wells or other works to withdraw water, we conclude that the exemption does not apply to permit 5,000 gallons per day to be withdrawn for domestic uses on each lot in respondents' 20-lot development. Accordingly, we reverse the trial court's grant of summary judgment in favor of the respondents.

Facts

In March 1999, respondent Campbell & Gwinn (C & G), a limited liability company, executed a real estate contract with respondents E.A. and Beverly White (the Whites) for the purchase of 20 vacant lots known as the Rambling Brooks Estates. The contract is based on the premise that the lots will be developed or sold by March 2002, at which time the total purchase price is due.

Each lot is subject to a single set of protective rules and covenants. The lots are on a dead-end road that provides the only access, and a sign saying "Rambling Brooks Estates" is at the entrance to the development.

The property lies in the Yakima River Basin, in Yakima County. It has Ahtanum Creek irrigation water rights, but a flood several years ago destroyed off-site diversion facilities. Also, in 1954, a previous owner of the land obtained a permit to appropriate groundwaters to supplement the Ahtanum Creek irrigation rights. That permit was cancelled when the owner failed to file a notice of completion of construction of a well. Although the permit was canceled, the well was used for irrigation for many years while the land was farmed.

Mr. Campbell, a co-owner of C & G, states that a few days after C & G executed the purchase contract with the Whites, he went to Ecology's Central Regional Office in Yakima and spoke with an Ecology employee who advised Campbell that the property had Ahtanum Creek irrigation rights, but that because of the well permit cancellation, water could not be withdrawn from the existing well. Campbell states that the employee also told him that domestic water could be provided without a permit through the use of one well for each one or two parcels. C & G investigated costs, and decided to provide domestic and irrigation water to the lots by constructing individual wells on each lot. Mr. Campbell has stated, though, that he would prefer to use fewer wells if he could do so without a permit.

On April 1, 1999, C & G executed an agreement to sell one of the lots to a contractor. C & G also began work on two "spec" (speculation) houses, and entered into an agreement with a well drilling company, which drilled wells on the "spec" house lots and on the parcel being sold to the contractor. By the first week in August, C & G had entered into an agreement to construct a house on and sell a fourth parcel, and had substantially completed work on the two "spec" houses. The contractor was also nearing construction on the residence he was building.

In the meantime, early in April 1999, an Ecology employee in Yakima charged with enforcing well construction regulations received the notice forms of C & G's intent to drill 20 individual wells. He believed, after reviewing the notices, that they were in violation of a 1997 attorney general opinion that concluded that the permit exemption for groundwater withdrawals for domestic uses of 5,000 gallons per day (gpd) or less does not apply to a group of wells constructed as part of a single development if withdrawal from the wells would exceed 5000 gpd.

In August, Ecology employees relayed concerns to C & G about the applicability of the exemption,1 and on August 25, 1999, C & G and its attorney and Ecology representatives and an assistant attorney general met to address the problem. Ecology maintained that the 20 lots which C & G owned or was purchasing was a single project for which only one exempt withdrawal was available under RCW 90.44.050, and that any withdrawal in excess of 5,000 gpd for the project would be subject to the permitting and certification requirements of chapter 90.44 RCW. C & G and the Whites disagreed. C & G, the Whites, and Ecology reached a settlement agreement that C & G would diligently and vigorously pursue water rights or water services for four lots then under contract for sale or sold. If C & G were unsuccessful in this attempt, Ecology agreed that it would not take enforcement action against those four lots. As to the remaining undeveloped 16 lots, the parties agreed to submit the exemption issue in a declaratory judgment action in Yakima County Superior Court.

Meanwhile, as the parties note, on August 12,1999, Ecology entered a "Memorandum of Agreement" with the Yakama Nation and the United States Bureau of Reclamation, under which Ecology agreed to impose a five-year moratorium on the issuance of any groundwater permits in the Yakima River Basin. Clerk's Papers (CP) at 672. Ecology has not, in fact, issued any new groundwater permits in the Yakima River Basin since 1993. On October 29, 1999, Ecology filed this action against C & G and the Whites, seeking declaratory and injunctive relief. Ecology asked the court to declare that the 16 lots may not cumulatively withdraw in excess of 5,000 gpd without first obtaining a permit or other formal authorization, and to enjoin C & G from any further well drilling on the lots.

The parties filed cross-motions for summary judgment. On September 26, 2000, the trial court granted C & G's and the Whites' motion for summary judgment. The court explained in oral comments and stated in its summary judgment order that the exemption is determined with reference to the person making the withdrawal and beneficially using the groundwater. The court ruled that "[w]ithdrawals from multiple wells within a subdivision, if each withdrawal is less than 5,000 gallons per day, are multiple withdrawals, not a single withdrawal. Each 5,000 gallon per day withdrawal is exempt from the permit requirement of RCW 90.44.050." CP at 10 (summary judgment order). The trial court alternatively ruled that Ecology is equitably estopped from requiring that C & G and the Whites comply with the permit process for any individual withdrawals in the development drawing less than 5,000 gpd.

Ecology appealed, seeking direct review of the appeal by this court, which was granted. Two joint amici curiae briefs have been filed by (1) the Center for Law and Policy and the Washington Environmental Council and (2) Okanogan County, Wahkiakum County, the Building Industry Association of Washington, the Washington Association of Realtors, and the Washington Ground Water Association.

Analysis

RCW 90.44.050's exemption from groundwater permit requirements

Chapter 90.44 RCW, the groundwater code, is supplemental to the surface water code, chapter 90.03 RCW, and was enacted in 1945 to extend surface water statutes to the appropriation and beneficial use of groundwater. RCW 90.44.020. Both the surface water code and the ground water code are premised on the doctrine of prior appropriation, which applies when an applicant seeks to obtain a water right in this state. RCW 90.03.010; Postema v. Pollution Control Hearings Bd., 142 Wash.2d 68, 79, 11 P.3d 726 (2000); Neubert v. Yakima-Tieton Irrigation Dist., 117 Wash.2d 232, 240-41, 814 P.2d 199 (1991). Under the prior appropriation doctrine, a water right may be acquired where available public water is appropriated for beneficial use, subject to existing rights. RCW 90.03.010. The same is true of groundwater. "Subject to existing rights, all natural ground waters of the state ... are hereby declared to be public ground waters and to belong to the public and to be subject to appropriation for beneficial use under the terms of this chapter and not otherwise." RCW 90.44.040; see Hillis v. Dep't of Ecology, 131 Wash.2d 373, 383, 932 P.2d 139 (1997)

. RCW 90.44.060 provides that groundwater applications shall be made in the same way as provided in the surface water code in RCW 90.03.250-.340. Thus, before a groundwater permit may be issued to a private party seeking to appropriate groundwater, Ecology must investigate and affirmatively find (1) that...

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