posted by Dave Troupe on Jul 09 2008

January 12, 2010 - Court Date scheduled. Amicas Briefs have been filed!

Letticia and all,

                Some of you were at the Co-op meeting yesterday, for those of you not present I’ll try to sum up what is going on with regard to the municipal water law case. 

Judge Rogers ruled as follows:

·         The municipal water supplier and related municipal water supply purpose clauses were ruled unconstitutional,

·         The laws declaration that water right certificates issued on the basis of “pumps and pipes” are rights in good standing was ruled unconstitutional.
Both of these were overturned on the basis of separation of powers between the courts and the legislature and were based on the late 1990’s George Theodoratus Supreme Court case ruling.  The above throws a lot in question.  At this point we’re are back to the status before the law on those issues.  Of note, Judge Rogers did not rule that the laws clause prohibiting DOE from rescinding “pumps and pipes” water rights was unconstitutional.  So it looks like those rights are secure from DOE action at this time.
Judge Rogers ruled (for utilities) that the law’s following clauses were valid;

·         The number of connections or population in the water right or report of examination are not limiting factors on a water right – the GPM and Acre/feet are the limits of the water right.

·         The place of use of a water right may be changed as part of a water system plan approval.
These clauses were found not to violate procedural or substantive due process.
                                At this point it is anticipated that DOE/DOH will appeal the first two bullets seeking direct review by the Supreme Court and seek a stay on any actions as a result of the court’s ruling.  The Washington Water Utility Council (WWUC) and Cascade Water Alliance have both also authorized an appeal of the decisions against utilities.  The best case time line for the Supreme Court decisions is late 2009 or early 2010.
                For now do not expect any decisions from DOE relative to water rights.  DOE and DOH are trying to figure out how to proceed in the interim until the Supreme Court has made a decision.  There may be action by the legislature to help resolve the two areas where the law was overturned.  The muni definition could be made more restrictive and both the definition and pumps and pipes provisions declared to only be effective from the date of the new law onward and not retroactively.  That seemed to be a major issue for Judge Rogers.  Some concern still exists as to the status of pumps and pipes water right certificates especially their inchoate portions.  For now it’s best to just proceed as normal until the dust settles and we see what actions are taken by the state agencies and courts.

                Katherine Brook from Pierce County and a deputy prosecuting attorney were at the Co-op meeting.  They are concerned about the implications of the court actions for grow management.  Katherine did relate that the County Council has authorized the reinstating of the Pierce County Water Utilities Coordinating Committee to work on an update to the County’s Coordinated Water System Plan.  The first meeting of the committee will be in September.

                Hopefully this helps explain the current status.  As more occurs I will try to pass the work on.

Thanks, Jeff

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Subject: Appeal of Muni Water Law
 
To All,
                I just got word that the attorney general has filed an appeal and requested direct review by the Supreme Court on Judge Rogers’ decision in the Muni Water Law case.  No word yet on the state seeking a stay (this may not be necessary).

                It looks like Monday the 28th is not a good day to meet for many of you.  Based on the responses Tuesday, July 29th at 1:00 pm is the best time for most.  If you can mark your calendars for Tuesday at 1:00 pm it would be appreciated.  The WWUC will be meeting on the 25th so we will get an update on the WWUC status at that time.

                I should note that Tom Pors will be getting me two budgets.  The first for all co-op members for continued participation in the WWUC joint defense group (of attorneys including the attorney generals).  The second would be for the non-profits/mutuals (and possibly the for profits) that would include an amicus curiae (friend of the court) brief focused on the municipal water supplier/municipal water supply purpose definitions.

I’ll keep you informed as I hear more.  An agenda for the meeting on the 29th should go out around the 23rd.

Thanks, Jeff