A water company which hadn’t participated in lower-level court action on a water right case has standing to participate in the case at appellate level, the Oregon Court of Appeals decided on August 11 in Pete’s Mountain Homeowners Association v. Oregon Department of Water Resources.
Although the Pete’s Mountain Homeowners Association wound up suing the state Department of Water Resources, the state agency actually agreed with it that it should be allowed into legal proceedings into the rights question. The question concerned a right held by the Pete’s Mountain Water Company, which allowed use of “groundwater for group domestic use and limited irrigation in an approximately 147-acre area in Clackamas County.”
The Court of Appeals summarized its read of the case:
In this water rights case, the Oregon Water Resources Department (the department) approved an application of Pete’s Mountain Water Co., Inc. (the water company), to amend a water right permit. Petitioners, a neighborhood association and a number of local area residents, filed a petition for judicial review of an order in other than a contested case. The water company intervened and moved to dismiss for want of statutory standing, arguing that, under ORS 536.075(1), only a “party affected” by an order of the department may seek review of the order; in this case, the water company argued, petitioners were not parties to the prior proceeding. The department joined in the motion to dismiss. Petitioners conceded that they were not parties to any prior proceedings in this case because there was no prior proceeding to which they could have become a formal party. They argued that the fact that they were affected by the department’s order was sufficient to confer standing. The trial court agreed with the water company and the department and dismissed the petition for judicial review.
Petitioners appeal, assigning error to the dismissal on standing grounds. They contend that, notwithstanding the statutory provision that only “parties” may seek judicial review, they have standing because the term must be understood to refer to “persons,” regardless of whether they participated in any prior proceedings, so long as they are affected by the order that they challenge. Interestingly, on appeal, the department switches positions and now sides with petitioners in asking for reversal. The water company adheres to its contention that, even if there was no proceeding to which petitioners could have become formal parties, the statute nevertheless confers standing only on such “parties.” We agree with petitioners and the department and reverse and remand.
Nevada State Engineer Tracy Taylor said this month that water – about 9,000 acre feet per year – could be piped from the Lake Valley Hydrographic Basin in Lincoln County to the new and planned Coyote Springs development.
Coyote Springs is planned to be the site of about 25,000 home, possibly 80,000 people, in the remote desert more than 50 miles northeast of Las Vegas. Plans have called for lot sales in 2009, though what effect the recent economic downturn may have on the development is not yet clear.
The decision is likely to cause a stir in Las Vegas, which also has been looking around for fresh awater supplies, in the Lake Valley area among others. [see Las Vegas (NV) Sun, December 9]
The Washington Department of Ecology and Kittitas
County have signed a groundwater management agreement that will guide how decisions are made on residential
developments served by exempt wells.
Rapid growth in the county has resulted in a proliferation
of the wells that are exempt from water right permits. That
spurred a citizens group to petition Ecology last year and
seek a temporary moratorium on the wells. As an
alternative to the moratorium Ecology and the Kittitas
County Commissioners negotiated the groundwater
agreement over seven months and Ecology hosted four
public meetings to address water supply issues in upper
A key component of the agreement is a groundwater
study that will define the hydrogeology of upper Kittitas
County. Gov. Chris Gregoire asked for and received
$300,000 in funding from the 2008 Legislature for the
groundwater study. The governor also requested and
received $383,000 in funding for Ecology and Kittitas
County to implement provisions of the groundwater
Ecology will hire a watermaster for the region and the
county will add staff and purchase equipment to monitor
and collect data on groundwater use in western Kittitas
County. Senior water right holders have been concerned
that rapid rural development will impair their water
supplies. The agreement will help ensure a water supply for
present and future users.
The final agreement outlines management measures that
will be put in place while the groundwater study is under
way. Now, rural developments relying on permit-exempt
wells for their water supply will be allowed only one
groundwater exemption. Development applications will be
required to show how all domestic and lawn/garden water
use in a development won’t exceed 5,000 gallons per day.
Water metering will be required.
The signed agreement may be viewed online at http://www.co.kittitas.wa.us/cds/current/ and
http://www.ecy.wa.gov/programs/wr/cro/kittitas_wp.html Hard copies of the agreement are available at the
Kittitas County Development Services Center in Ellensburg at 411 North Ruby St. and at Ecology’s office
in Yakima at 15 W. Yakima Ave., Suite 200, Yakima, WA 98902. Tom Tebb, Department of Ecology, water
resources program, 509-574-3989; Darryl Piercy, Kittitas County director of Community Development
Services, 509-933-8228; Dan Partridge, Department of Ecology, 360-407-7139. Department of Ecology
News Release – April 8