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District considering lottery allotments

By Meg Olson

The state department of health has given the Point Roberts water district authorization to issue 162 additional water connections, but the allocation plan being proposed by district legal staff is making commissioners squirm.

“It’s going to be tough,” said commissioner Renee Coe at a special meeting February 16 centered on a telephone conference with district legal counsel John Milne in Seattle. “My idea of fair and equitable doesn’t necessarily mean legally fair and equitable.”

Milne gave Point Roberts Water District 4 commissioners an allocation plan used by the Sammamish Plateau Water and Sewer District starting in 1998 when the community of 40,000 got down to 800 connections and the district enacted a moratorium. The district was “in the same position, as Point Roberts,” Milne said, and began studying new sources. The remaining connections, minus a reserve for public safety and public uses, were allocated through a process Milne is suggesting as a model for Point Roberts. “There was never any legal challenge,” said Milne, during the seven years the Sammamish allocation process was in effect.

The Sammamish process took applications by project, whether that was a subdivision requiring 100 connections or a single connection for a family home. Applications were verified to insure lot ownership. “You can’t apply for 10 Equivalent Residential Units (ERUs) on a single family lot,” Milne explained. Each application was given a number and if there were less requests than available ERUs, “you have a perfect world,” Milne said. All applicants get their connections and if there are ERUs left another allocation is scheduled for a later time.

If, as district manager Dan Bourks said is very likely once the current moratorium in Point Roberts is lifted, applicants request more ERUs than available, the list of application numbers is randomized by a certified general accounting firm. The available ERUs are allocated according to which application number comes up first in the randomized list, which Milne said was the most legally defensible way to ensure equal protection to all parties as guaranteed by the state constitution.
What concerned water commissioners was that if the first two applicants on the randomized list were the golf course, which has requested 56 ERUs for its first phase residential component, and a proposed subdivision on the western fringe of Lily Point, which has asked for 80, there would be almost none left for the growing number of single residences stalled while waiting to get water.

“I understand equal protection but with a limited amount and we have two developers who can eat it all up, it makes it hard to digest,” Coe said.

Commissioners asked if applications could be limited to a single ERU, so developers would have to put in an application for each ERU they needed and take their chances. Milne said that could violate a developer’s ability to use their land, since they would not be able to get county zoning approval for the subdivision until they had demonstrated water availability for all lots. “Can we ask ‘why do you want the water supply?’ We don’t have the legal authority to ask that,” he said.

Commissioner Sue Johnson asked if there was “any way we can look at the historical significance of a subdivision,” in which the property owners without connections have paid for their water infrastructure through a utility local improvement district (ULID). ’They could ask shouldn’t I have a reservation of capacity but over the years the overall system got replaced over and over,” Milne said. He cited other utilities that had been sued for not serving property owners on a ULID who had not been connected prior to a moratorium. “The court upheld they didn’t have any right for reservation of capacity,” Milne said. “They haven’t paid into the system,” said Coe. “That’s right,” Milne answered. “All the active connections have been paying for it.”

What the district can do, Milne said, and what Sammamish did successfully, is limit the time a water availability certificate issued through the allocation is valid before it returns to the district. “You can tie these people down so they’re committed to doing what they need for service,” he said. “If people are asking you for a commitment you want them to make one, too.” In Sammamish, projects requiring a developer extension of service had to pay an administrative fee and the general facilities fee for every ERU within 60 days and the certificate was valid for six months. Properties who needed a simple connection had to pay a $25 administrative fee and the certificates were valid for a year. If the connection charges were not paid by the end of the grace period, certificates were revoked and the ERUs went into the next allocation.
Milne did not recommend only issuing connections to properties with structures or permits to build. “In the eyes of the law it’s not a valid distinction,” he said. “Districts do not have land use authority.”
“I agree with use it or lose it but who will police that,” agreed Johnson. “Our business is not to police how people use their land. It’s to supply water.”

Commissioners agreed to consult an attorney with the state Water and Sewer Risk Management Pool before deciding on the method of allocation, or even how to decide it. “I think it’s a good idea to do some homework and reconvene,” Johnson said, adding she thought commissioners had enough input from the public and that a public hearing on the subject would “turn into a free for all.”

Bourks and Milne urged commissioners to not be hasty in deciding what allocation process would be used. “Whatever process you do go to should be very deliberate,” Milne said.