Water service rights in The Villages still disputed | Part 1

The disputed 98 acres

Editor’s note: This is part one in a series of articles on the 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’s article examines each entity’s claim to exclusive right to the 98 acres of land. Next week will examine statements made in Black Diamond’s 2009 Water Comprehensive Plan and how that may affect the city’s claim to the land.

After a week-long public hearing session, the Black Diamond City Council decided to table a vote Thursday on whether or not the city should assume water service rights to 98 acres at the edge of The Villages development in the city.

The city and the Covington Water District have been in a dispute over these 98 acres since at least 2008, which has come to a head this year.

For a myriad of reasons, both Black Diamond and the Covington Water District claim exclusive rights to serve water to future residents of this portion of The Villages, a 1,196 acre development in the south-western part of the city. State law prevents water service providers from overlapping service areas.

The 98 acres in question is at the north-western edge of The Villages.

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

City Ordinance 15-1058, if approved by Black Diamond, will start the official process of assuming, or taking over, those 98 acres, giving Black Diamond the exclusive right to serve that area.

The City Council vote on the ordinance is scheduled for Sept. 3, which allows the city staff to examine comments and questions raised during the public hearing.

The Covington Water District plans to appeal to the King County Boundary Review Board if Black Diamond passes this ordinance.

Who has exclusive rights?

According to Black Diamond, the dispute over these 98 acres was over before it began when the city annexed the The Villages in 2005.

The annexation of The Villages and King County’s approval of the city’s 2009 Water Comprehensive Plan gave the city the exclusive right to supply water to those 98 acres, Black Diamond wrote in the background section of Agenda Bill 15-057, presented to the public during the Aug. 20 City Council meeting.

Black Diamond stated Covington Water District did not formally appeal either the annexation or the 2009 water comprehensive plan.

Covington Water District argues the annexation of The Villages does not automatically give the city exclusive rights to serve those 98 acres. The district claims the right to serve that area because it was given to them under the 1989 South King County Coordinated Water System Plan.

In order to settle this dispute, the Covington Water District appealed to the King County Utility Technical Review Committee on Feb. 17, 2015. The Utility Technical Review Committee (UTRC) is given authority by the South King County Coordinated Water System Plan to hear water service boundary disputes and make decisions based on both party’s arguments.

On May 1, the UTRC made four decisions based on the arguments given by Covington Water District, the city of Black Diamond and YarrowBay.

The first two UTRC decisions were the 98 acres are within the jurisdiction of Covington Water District and the district was able to demonstrate it could serve water to future residents in a timely and reasonable manner.

The UTRC also ruled the city of Black Diamond could provide timely and reasonable water service to future residents, and the city could statutorily assume those 98 acres under chapter 35.13A of the Revised Code of Washington, consistent with RCW 70.116.090.

Under RCW 35.13A, a city may assume, or take over, any portion of a water district that overlaps with the city’s legal boundaries.

The UTRC stated Black Diamond had the right to assume the property for water service, and the committee chair stated the county would most likely prefer Black Diamond, and not the Covington Water District, to be the water service provider in that area.

“If you look at comprehensive planning, the Growth Management Act, and the idea that cities are the preferred form of governance, especially in the urban area and in the potential annexation areas then we defer to cities, and the county respects the authority for cities to take care of their own business,” Steve Hirschey, chair of the UTRC, said during a phone conversation.

While the UTRC decided it was within the city’s rights to assume those 98 acres and the city is most likely the preferred water service provider, Black Diamond appealed the UTRC decision. The city’s position is annexing The Villages property gives Black Diamond exclusive right to serve water to those 98 acres outside the assumption process.

To this point, Hirschey said, “The city of Black Diamond and Yarrow bay have argued that previous actions have somehow made that part of the disputed service area their service area. They did an annexation, and an annexation has its own statutory framework. It has its own approval process. But it’s not tantamount to an assumption. There are statues that say if the city wants to take over the operations and responsibilities of the district, that they should assume them.”

Black Diamond’s appeal of the UTRC decision is expected to be heard by the King County Hearing Examiner in November.

Either party may dispute the Hearing Examiner’s decision, which move the dispute to the King County Superior Court.

Although the city plans to continue with its appeal, the city has stated, “completing assumption may reduce litigation and lead to a more efficient resolution of the matter,” in council documents.

The city also said that going through the assumption process does not mean the city admits the assumption process was necessary.

Follow Ray Still on Twitter @rayscottstill.