Water assumption ordinance vote on Thursday | Part 2

Editor’s note: This is part two in a series about a water service dispute between the city of Black Diamond and the Covington Water District. Both claim service rights to 98 acres inside the Black Diamond city limits. This week the article examines statements made in Black Diamond’s 2009 Water Comprehensive Plan, responses from the Covington Water District and how these may affect claims to the land. Lasts week’s article examined each entity’s claim to exclusive right to the 98 acres.

As Black Diamond staff prepares Ordinance 15-1058 to officially assume water service rights to 98 acres of The Villages development, the Covington Water District is doubling down on its efforts to wrestle back control of the disputed land.

If the council votes to approve the ordinance, the city will begin the official assumption, or take over, of water service rights to those 98 acres in The Villages, something Black Diamond has been attempting since at least 2008.

If Black Diamond passes the assumption ordinance Sept. 3, the Covington Water District plans to appeal the decision to the King County Boundary Review Board.

The district is appealing to the review board because it believes Black Diamond misrepresented their relationship with the Covington Water District in the city’s 2009 Water Comprehensive Plan and argues the plan would not have been approved by the King County Council otherwise.

“An assumption would be unfair and unjust in light of the misrepresentations made by the City in the process of getting its Water System Plan approved,” reads a letter from the Covington Water District to Black Diamond, delivered to the city council on Aug. 6.

The city disagrees with the district’s claims.

“The idea that the City purposely misled the County are newly minted arguments crafted many years after the City’s Water Service Area was approved (in 2009) to support Covington Water District’s (CWD) present litigation position,” wrote Seth Boettcher, Black Diamond’s Pubic Works director, in an email interview. “CWD has been consulted throughout this process, including in the development of the City’s Water System Plan, which both the County and State approved six years ago. CWD never appealed or formally objected to the language in the City’s comprehensive plan at that time.”

The Villages is a 1,196 acre master planned development in the southwestern portion of the city. The 98 acres being fought over is located in the northwestern part of the development, just west of Morganville.

According to the water district, those 98 acres are worth $5 million in water connection revenues and an additional $4 million in water consumption revenues during the next 20 years.

The King County Hearing Examiner is scheduled Nov. 12 to consider whether the city or the district have exclusive rights to serve the 98 acres.

Misrepresented?

The Covington Water District claims Black Diamond misrepresented the relationship between the two entities in the city’s 2009 Water Comprehensive Plan.

The district further argues that Black Diamond shouldn’t be able to assume those 98 acres because the county approved the city’s water plan because the city misrepresented their relationship with the water district.

The statements in question relate to whether Black Diamond and the Covington Water District entered, or attempted to enter, into an interlocal agreement to transfer those 98 acres from district control to the city.

In response to the district’s claim, Boettcher wrote in an email interview, “The City has never stated an agreement had been executed, but that it was committed to developing one.”

In 2008, during the review process for the Water Comprehensive Plan, Black Diamond submitted drafts to King County, the Utility Technical Review Committee, the Department of Health and the Covington Water District.

The first draft of the plan notes state that part of the city’s water retail service area, “is outside of the Potential Service Area as defined in the South King County Coordinated Water System Plan (SKC-CWSP),” referring to the 98 acres within The Villages.

The draft continues, “It is recommended that the City immediately begin pursuing a boundary adjustment with the Covington Water District so that as development occurs in this area it is serviced by the City of Black Diamond.”

The Covington Water District read this statement around Feb. 20, 2008, and asked PacWest Engineering, which prepared the Water Comprehensive Plan for Black Diamond, to provide information like street references and addresses about the 98 acres the city planned to serve.

PacWest Engineering responded to the district’s questions, writing that the firm was glad the district was “aware of this issue” and that the city and the district should work with the county to adjust both water service areas so Black Diamond could serve water to the 98 acres.

In response, the district proposed to trade the 98 acres for the right to serve water to two different parcels of land that lay outside the Black Diamond city limits but inside the Covington Water District’s service area. This was the district’s official response to the city’s comprehensive plan, mailed to the city on March 7, 2008.

Black Diamond told the district the city was not interested in a trade because those two parcels of land were intended to be a major commercial area for the city. This is noted in comment documents in Appendix C of the Water Comprehensive Plan.

In the same document, Black Diamond stated the city and district “have reached tentative agreement to transition the area in question from the Covington Water District to the City of Black Diamond.”

It is unclear whether Covington Water District received Black Diamond’s responses to the district’s comments after the district’s initial review of the comprehensive plan, with exception to the city’s refusal to the land trade.

At some point in the review and drafting process, the Water Comprehensive Plan was rewritten to read, “The City and Covington Water District are cooperatively preparing an interlocal agreement reflecting this boundary adjustment.” This statement made it into the 2009 approved plan.

Conversation about the disputed 98 acres between the district and the city became sparse until the district contacted the city again in 2011 after receiving the notice of application for The Villages’ Master Planned Developments.

In an email dated April 27, 2011, the district asked the city if it had “discussed plans to approach the boundary impacts to the developer (YarrowBay) in dealing with two water providers? … It should be made clear to the developer that they are dealing with two agencies’ connection requirements.” The email made it clear the district “had no problem” with serving those 98 acres and another email sent to the city said the district was “very able and willing” to serve that land.

This email was forwarded to a permit reviewer working with Black Diamond, who wrote to the city that in his research, he discovered this boundary issue “was recognized and acknowledged during the Black Diamond Comp Plan approval process.”

“There is correspondence in Appendix C (of the comprehensive plan) that would lead you to believe that Covington, King County, Black Diamond and DOH resolved this issue and the expectation was that BD and Covington would process and approve an Interlocal Agreement that resolves the service area boundary,” the permit reviewer continued. “I’m not sure if anything was done to prepare the Interlocal Agreement.”

According to documents given to the King County Utility Technical Review Committee during last spring’s hearing, conversations between the Covington Water District and Black Diamond between 2011 and 2014 appeared rare. No emails, letters or meeting minutes between late 2011 and 2014 detailing any talks about the 98 acres were submitted to the UTRC by either party during the hearing.

There was one meeting between the district and the city on March 14, 2015, but Black Diamond rescheduled two meetings and eventually told the Covington Water District, “the City is not willing to meet,” in an email dated June 6, 2014.

It was a month later when the Covington Water District appealed to the UTRC to determine if the district could provide reasonable and timely water service to future residents of the 98 acres.

During the UTRC hearing, the committee examined its own involvement during the review process for the 2009 Water Comprehensive Plan.

During the review process, the UTRC asked Black Diamond on March 7, 2008, how the 98 acre boundary change proposed in the plan was being addressed, since that area would be covered by two water service entities. These comments were submitted on March 7, 2008, the same day as the Covington Water District’s letter proposing a land trade to Black Diamond.

The UTRC referenced King County Code 13.24.060 in their comments, which requires water comprehensive plans to prevent two water service providers from covering the same area. The code states water comprehensive plans will not be approved by the county if an area is served by two water providers.

The city responded to King County and the UTRC by writing, “Black Diamond and the Covington Water District are in tentative agreement regarding the transfer of service from Covington Water District to the City of Black Diamond. An interlocal agreement will be prepared which outlines the details.”

King County and the UTRC replied in a letter to the city dated Nov. 5, 2008, stating, “We… are glad to see that Black Diamond and the Covington Water District are already in agreement with respect to service area transfers.”

However, after re-examining the documents provided to the UTRC during the 2008 review period, the committee stated it was “led to believe” the boundary issue was taken care of.

In the UTRC’s findings section of their May 1 decision, the committee wrote that it recommended the King County Council approve the city’s Water Comprehensive Plan, in part, because there was an apparent agreement between Black Diamond and the Covington Water District.

“We were fully assuming the issue was resolved when the city’s consultants gave us that information,” said Steve Hirschey, the UTRC chair, in a phone interview on Aug. 20. “And it ended up not happening.”

Hirschey also said if the UTRC was aware that Covington Water District and Black Diamond were not in agreement over the 98 acres, the UTRC “likely would have waited until the issue was cleared up” before recommending the King County Council approve the Water Comprehensive Plan.

The King County Council declined to comment on the UTRC findings because the case is ongoing, but said in any case, could not speculate what the council would have done in 2008.