tVirginia-based co. asks for use of public-right-of way to shuttle Crow Valley water to proposed development on Dolphin Bay Road

State law may well favor allowing public roads to be use as a conduit for carrying water – or electricity – from one parcel of land to another, even if both are privately owned.

But that probably won’t dissuade islanders from protesting against a proposed franchise agreement which, if approved, would help set the stage for turning a 108-acre parcel into a neighborhood of 14 homes on the waterfront near Dolphin Bay Road. The agreement would allow water to be pumped from a well on agricultural land in Crow Valley to the Dolphin Bay Road parcel through a network of pipes located mostly within the public right-of-way.

The proposed franchise has already drawn fire. Errol Speed of Orcas Island believes a poor precedent would be set by its approval.

“Mining water from our agricultural land and redistributing it to shoreline lands would not be a prudent thing to do,” Speed said in a letter published earlier this year by the Sounder. “Do we have the lawful ability to stop this? Is this a precedent we want to set?”

The fate of the franchise lies with the San Juan County Council. The council will consider whether to give the agreement its stamp of approval Sept. 29 at the conclusion of a public hearing at the Orcas Island Senior Center in Eastsound. The hearing begins at 10 a.m.

Like Speed, Dana Kinsey, a planner with the San Juan Islands Conservation District, is taking aim at the agreement as well. Kinsey notes in addition to the franchise request, which would tap ground water below a designated Class 3 wetland, the development’s backers are also asking for approval from the state Department of Ecology to draw up to 5,000 gallons of water a day from a 45-foot-deep well in Crow Valley.

“Freshwater removal will adversely impact the Westsound watershed and all of its water supplies,” she said. “Our agricultural lands and Crow Valley’s water ought not be used for the latest waterfront development scheme.”

However, according to the prosecuting attorney’s office, the council, which last week voted 6-0 in approving a similar franchise agreement at Hunter Bay on Lopez Island, has only a “narrow decision” to make. Whether the development itself warrants approval rests with the Community Development and Planning Department and its review of plans for the project, according to a Sept. 5 memo from deputy prosecutor Karen Vedder to the county council.

Whether it’s for water or electricity, if a request for use of the public-right-of-way is determined to be in the “public interest” then state law and court rulings, according to Vedder, favor its approval. The definition of “public interest” is both broad and liberal in the eyes of the state highest court, she said.

“Because the beneficial use of water is considered a ‘public use’ under Washington law and public interest extends beyond mere public use there is a strong basis for granting franchises for the conveyance of water within public road right-of-ways,” according to deputy prosecutor Karen Vedder’s Sept. 5 memo to county council members.

Whether it’s for water, sewer or electricity, county officials have approved numerous franchise agreements in the past. Following last week’s approval of the water franchise at Hunter Bay, the Department of Public Works now has 30 such agreements on file, the majority of which allow water to be shuttle through underground pipes within the public-right-of way.

Whether the proposed franchise targeted for Dolphin Bay Road will become No. 31 remains to be seen.