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                                                                              FILED

                                                                           May 3, 2012

                                                                   In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

STATE OF WASHINGTON, 
DEPARTMENT OF ECOLOGY,                          )
                                                )         No.  29675-0-III
                      Appellant,                )
                                                )
       v.                                       )
                                                )
THE CITY OF SPOKANE VALLEY and                  )
COYOTE ROCK, LLC,                               )
                                                )
                      Respondents.              )
________________________________                )
STATE OF WASHINGTON,                            )
DEPARTMENT OF ECOLOGY,                          )
                                                )
                      Appellant,                )
                                                )
SPOKANE RIVERKEEPER, SPOKANE                    )         PUBLISHED OPINION
FALLS CHAPTER OF TROUT                          )
UNLIMITED, and THE LANDS                        )
COUNCIL,                                        )
                                                )
                      Plaintiffs,               )
                                                )
       v.                                       )
                                                )
CITY OF SPOKANE VALLEY and                      )
COYOTE ROCK, LLC,                               )
                                                )
                      Respondents.              )
                                                ) 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

       Siddoway, J.  --  Since its adoption by voters 40 years ago,1 the Shoreline 

Management Act of 1971 (SMA), chapter 90.58 RCW, has provided that no development

may be undertaken on Washington shorelines unless consistent with the policy of the 

SMA and any local shoreline master program.  RCW 90.58.140(1).  The requirement is 

effectuated by requiring that anyone undertaking a substantial development on the 

shoreline first obtain a permit from the appropriate local jurisdiction.  RCW 90.58.140(2).  

The definition of "substantial development" is subject to a dozen exceptions, one being 

"[c]onstruction of a dock . . . designed for pleasure craft only, for the private 

noncommercial use of the owner, lessee, or contract purchaser of single and multiple 

family residences" having a value, in the case of a freshwater dock, of less than ten 

thousand dollars.  RCW 90.58.030(3)(e)(vii).

       In this case we are called upon to decide whether the developer of 30 residential 

waterfront lots in the city of Spokane Valley is entitled to rely on this owner-

noncommercial use exemption to construct docks appurtenant to the spec (speculative) 

homes it builds for resale and, if it is entitled to rely on the exemption, whether the city

violated SMA policies by exempting two docks without imposing conditions to protect 

       1 For the history of the shoreline measures submitted to voters in 1972, see 
Geoffrey Crooks, The Washington Shoreline Management Act of 1971, 49 Wash. L. Rev. 
423, 423-25 (1974). 

                                               2 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

against the cumulative effects of a potential 30 docks. We find the first issue to be 

dispositive and hold that the statutory exemption applies only when the owner, lessee, or 

contract purchaser requests the permit in order to undertake construction for its own 

noncommercial use.  We reverse the superior court's order denying Ecology's land use 

petitions.

                      FACTS AND PROCEDURAL BACKGROUND

       Coyote Rock Acres is a residential subdivision located alongside the Spokane 

River in the city of Spokane Valley platted to include 30 waterfront lots.  The developer
of the subdivision, to whom we will refer as Coyote Rock,2 triggered the city's first

review of shoreline issues when it applied for a permit to grade most of the site for future 

development.  Its environmental checklist and plans submitted under the State 

Environmental Protection Act (SEPA), chapter 43.21C RCW, proposed a 50-foot 

shoreline setback for the grading project that the Washington State Department of Fish 

and Wildlife (Fish & Wildlife) objected to as inadequate because the river and adjacent 

       2 The record reveals that several entities have been involved in the development 
and application process for Coyote Rock:  Neighborhood Inc., the owner of the project; 
Monarch Development Inc. and Invest Northwest, which applied for several of the 
required permits on Neighborhood's behalf; and Coyote Rock LLC, which applied for the 
exemption from the SMA substantial development permit requirement.  The separate 
character of the entities has not been an issue in connection with the dock exemption 
applications and Land Use Petition Act (LUPA), chapter 36.70C RCW, actions.  For 
simplicity's sake, we refer to the entities, interchangeably and collectively, as "the 
developer" or "Coyote Rock."

                                               3 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

riparian area were very sensitive to disturbance. 3  After considering comments, the city 

issued a mitigated determination of nonsignificance for the grading and rehabilitation 

project requiring that Coyote Rock observe a 75-foot riparian setback from the ordinary 

high-water mark. The Washington State Department of Ecology endorsed the idea of 

increasing the setback to 75 feet and expressed its view that "[i]n order to be effective, 

[the] buffer must be absolutely undisturbed and undeveloped." Clerk's Papers (CP) at 

221.

       After consulting with Ecology, the city notified Coyote Rock that a shoreline 

substantial development permit would also be required for the portion of the grading 

work that would be performed within the shoreline area.  Coyote Rock submitted an 

application for the permit and other environmental approvals in the form of a joint aquatic 

resources permit application (JARPA). The JARPA was considered by a hearing 

examiner, who approved the application in part, subject to revised conditions.  In 

substantially approving the application, the hearing examiner concluded that a permanent

       3 SEPA requires the preparation of a detailed environmental impact statement 
(EIS) if a proposed major action may have a probable significant adverse impact on the 
environment.  An environmental checklist is used by the local agency to determine 
whether preparation of an EIS will be required.  The agency may conclude that the 
project will not have significant environmental impacts, in which case a determination of 
nonsignificance (DNS) will be issued; that, as occurred here, the project may have a 
probable significant adverse impact but can be altered to mitigate the adverse impact, in 
which case a mitigated DNS, or MDNS, will be issued; or that, in light of a probable 
adverse impact, an EIS must be prepared.  

                                               4 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

75-foot shoreline setback for the project and compliance with a habitat management plan 

prepared by Coyote Rock's consulting wildlife biologist would adequately mitigate 

impacts of the project on key habitat along or near the river.  Among conditions imposed 

by the approval were that the required 75-foot shoreline setback be permanently marked 

on the ground and that title notices be filed with the county auditor to provide notice of 

the setback to future owners.  The decision also conditioned approval on a requirement 

that any property owner in the Coyote Rock development wishing to install a dock along 

the Spokane River meet with the city's community development department, Ecology,

and Fish & Wildlife before applying for approval, stating, "The intent of this condition is 

to reduce the number and impacts of docks along this reach of the shoreline.  Only 

minimal low impact access ways and docks will be approved." CP at 134. 

       Two years later, in anticipation of constructing its first dock on the Spokane River

adjacent to a spec home it was constructing on lot 23, Coyote Rock obtained further 

guidance from city planners on the federal, state, and local requirements.  Among the 

requirements identified by the city were its shoreline master program, which required that 

Coyote Rock apply for a substantial development permit or demonstrate that it was 

exempt from the permit requirement, and SEPA, compliance with which was initiated by 

completing an environmental checklist.  

       The city's shoreline master program map designates the shoreline area at Coyote 

                                               5 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

Rock and neighboring land located along the south side of the Spokane River as Pastoral.  

Within areas designated by the city as Pastoral, docks are allowed only if statutorily-

exempt from the shoreline substantial development permitting requirement under RCW 

90.58.030(3)(e)(vii).  But other provisions of the master program provide that areas 

within subdivisions or plats that received preliminary approval by December 31, 1974 

shall be designated Rural (the second least restrictive area classification) notwithstanding 

their designation on the master program map, unless designated Urban (an even less-

restrictive classification).  A large portion of the Coyote Rock property was originally 

platted in 1908 and is therefore deemed Rural.  The master program permits docks in the 

Rural area for recreational, educational, or other public purposes, with shared or 

community docks being preferred over individual docks for the sole use of a property 

owner.

       The city circulated Coyote Rock's environmental checklist to Fish & Wildlife and 

Ecology, asking for comments.  Fish & Wildlife responded with a request that detailed 

plans be provided on whatever walkways, staircases, or graveled ramps were planned to 

provide access from the home to the dock.  Ecology submitted no formal comment by the 

city's requested deadline, but later sent an informal communication that piers were 

prohibited under the city's master program, that joint use docks are preferred, and that at 

a minimum joint use access should be required to limit impacts.  

                                               6 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

       Coyote Rock obtained the permits and approvals required to construct the dock, 

including a letter of exemption from the city excusing it from the requirement to obtain a 

substantial development permit on the basis that it was currently the owner of the single 

family residence associated with the proposed dock, whose estimated cost was under 
$10,000.4 The letter of exemption reiterated, as a condition of approval, the 75-foot 

shoreline setback requirement to which Coyote Rock was already subject, requiring that 

no disturbance in the 75-foot shoreline setback could occur without the approval of the 

city's planning division, Ecology, and Fish & Wildlife, and that 

       [d]etail plans shall be submitted showing the development in the seventy-
       five (75) foot wide shoreline setback.  This also includes any proposed 
       access from the area of the residence to the dock access.  

CP at 10.  Plans later filed by Coyote Rock contemplated that a trail may be built from 

each house to the river.  

       Several months after it submitted materials in support of approval for construction 

of a dock for lot 23, Coyote Rock filed materials in support of approval for construction 

of a second spec dock adjacent to lot 9.  This time, Ecology timely submitted comments 

in response to the SEPA checklist.  It contended that a spec dock is not designed for the 

       4 Other requirements satisfied by Coyote Rock were the requirement under the 
state hydraulic code (chapter 77.55 RCW) that it obtain a hydraulic permit approval from 
Fish & Wildlife and the city floodplain regulations, which required obtaining a further 
permit before installing the dock.  

                                               7 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

private noncommercial use of the owner, lessee, or contract purchaser of a single or 

multiple family residence within the meaning of the statutory exemption, stating:

       The application submitted and conversations with the developer and home 
       builder make it perfectly clear that this is a spec home and a spec dock. It 
       has not been purchased for the private use of an owner as of yet.
              . . . [U]ntil the residence is purchased, no docks can be constructed 
       along this reach of the river. After the spec home is sold and the new 
       owner decides they would like a dock, application could be made.
CP at 22.  Asserting that Coyote Rock had already constructed an "illegal" dock,5

Ecology elaborated on its concern:

              As can be seen by the existing illegal dock, the real impact from 
       docks in this location is in developing access through the shoreline buffer to 
       access the dock.  We believe that the intent, goals and use policies of the 
       [shoreline master program] will require limiting access and the destruction 
       to the riparian corridor inherent in developing that access, through the use 
       of joint access and docks.  The cumulative effects of locating 30 individual 
       docks and access on this reach of river will result in complete degradation 
       of the shoreline and should be reviewed and quantified prior to any dock 
       authorization. 

Id.  

       Ecology appealed the letter of exemption for the dock adjacent to lot 23 to 
superior court under the Land Use Petition Act (LUPA), chapter 36.70C RCW.6  Its 

       5 Ecology's reference was to the dock adjacent to lot 23.  Although Coyote Rock 
ultimately obtained all the required approvals for that dock, it had installed the dock 
before obtaining full approval and had violated conditions of approval dealing with the 
timing, notice requirements, and manner of constructing the dock.

       6 Ecology had no administrative remedy, since standing to appeal the exemption 
decision under the city's municipal code was limited to property owners or adjacent 

                                               8 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

petition alleged on information that Coyote Rock intended to install docks on all 30 of the 

waterfront lots in the subdivision to increase the value of the lots for resale.  It asked that 

the court reverse the exemption and either deny the application or remand the matter to 

the city with instructions to condition the exemption on requirements addressing 

cumulative impacts, including a limitation to joint docks or joint access.  When the city 

issued a second letter of exemption for Coyote Rock's construction of a dock adjacent to 

lot 9, Ecology brought a second LUPA action.  The appeals were consolidated. 

       The superior court affirmed the city's issuance of the exemptions, finding that the 

docks in question were "clearly intended for the private, non-commercial use of the 

adjoining properties" and that the adverse cumulative environmental impact was 

"speculative and not supported by the record."  CP at 747. Ecology brings this appeal.

                                         ANALYSIS

                 Issues, Standard of Review, and Maxims of Construction

       The superior court's review of the city's land use decisions in issuing the letters of

exemption was pursuant to LUPA and constituted appellate review on the administrative 

record before the city.  RCW 36.70C.120(1).  As a party challenging a land use decision, 

Ecology is required to demonstrate one of the standards for relief provided by statute.  

property owners, and the shorelines hearings board has no jurisdiction to review 
exemptions.  See Putnam v. Carroll, 13 Wn. App. 201, 534 P.2d 132 (1975).

                                               9 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

RCW 36.70C.130(1).  It relies on two statutory standards in challenging the city's letters

of exemption:  It argues first that the city's decisions in issuing the letters of exemption 

were an erroneous interpretation of the law, after allowing for such deference as is due 

the construction of a law by a local jurisdiction with expertise.  RCW 36.70C.130(1)(b).  

Specifically, it argues that the exemption from shoreline permitting for residential docks 

provided by RCW 90.58.030(3)(e)(vii) does not apply to spec docks built for resale.  

Second, it contends that the decisions were a clearly erroneous application of the law to 

the facts.  RCW 36.70C.130(1)(d).  Here, it argues that the policies of the SMA and the 

city's master program require that the city impose conditions addressing the cumulative 

impacts that will result from eventual construction of 30 docks, something the city's 

letters of exemption do not do.

       Whether a decision reflects an erroneous interpretation of the law under standard 

(b) is a question of law that courts review de novo.  Lauer v. Pierce County, 173 Wn.2d 

242, 252, 267 P.3d 988 (2011).  Under standard (d), a decision is clearly erroneous if, 

"'although there is evidence to support it, the reviewing court on the record is left with 

the definite and firm conviction that a mistake has been committed.'"  Id. at 253 (quoting 

Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 829, 256 P.3d 1150 (2011)).

       On appeal, we stand in the shoes of the superior court and review the decisions for 

factual or legal error under the statutory standards based on the record of the city, not that 

                                               10 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

of the superior court. HJS Dev., Inc. v. Pierce County ex rel. Dep't of Planning & Land 

Servs., 148 Wn.2d 451, 468, 61 P.3d 1141 (2003).  

       Our fundamental purpose in construing statutes is to ascertain and carry out the 

intent of the legislature.  We determine the intent of the legislature primarily from the 

statutory language.  In the absence of ambiguity, we will give effect to the plain meaning 

of the statutory language.  In re Marriage of Schneider, 173 Wn.2d 353, 363, 268 P.3d 

215 (2011).  In determining whether a statute conveys a plain meaning, "that meaning is 

discerned from all that the Legislature has said in the statute and related statutes which 

disclose legislative intent about the provision in question."  Dep't of Ecology v. Campbell 

& Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002).

       If a statute is "'susceptible to two or more reasonable interpretations,'" it is 

ambiguous. Five Corners Family Farmers v. State, 173 Wn.2d 296, 305, 268 P.3d 892 

(2011) (quoting Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005)).  The 

fact that two or more interpretations are conceivable does not render a statute ambiguous. 

Id.

               Construing the Dock Exemption at RCW 90.58.030(3)(e)(vii)

       In determining the intended scope of exemptions from the substantial development 

permitting process, we consider the explicit findings enacted as part of the SMA as an aid 

to construing its provisions.  They include findings that "the shorelines of the state are 

                                               11 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

among the most valuable and fragile of its natural resources" and "there is great concern 

throughout the state relating to their utilization, protection, restoration, and preservation."

RCW 90.58.020.  They include further findings that "ever increasing pressures of 

additional uses are being placed on the shorelines necessitating increased coordination in 

the[ir] management and development" and that "unrestricted construction on the privately 

owned or publicly owned shorelines of the state is not in the best public interest."  Id.  

       In construing the exemptions it is appropriate, too, to consider the difference that 

an exemption makes to utilization, protection, restoration, and preservation of the 

shoreline.  A substantial development ordinarily may not be undertaken on a shoreline 

without first obtaining a permit from the local government having administrative 

jurisdiction under the SMA, RCW 90.58.140(2); "substantial development" is generally 

defined as "any development of which the total cost or fair market value exceeds five 

thousand dollars, or any development which materially interferes with the normal public 

use of the water or shorelines of the state," RCW 90.58.030(3)(e).  If a dock is not 

exempt, it does not mean that the SMA forbids its construction, it only means that
construction of the dock is subject to the permit review and approval process.7

       7 We recognize that our conclusion that Coyote Rock's construction of a spec dock 
does not qualify for the owner-noncommercial use exemption will have an additional 
ramification under the specific master program at issue here: unless the city modifies its 
master program, Coyote Rock will not be able to construct docks at all on its waterfront 
lots (if any) that were not platted prior to 1974 and fall within the area that the master 
program designates Pastoral.  That is not a direct consequence of our construction of the 

                                               12 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

       The permit application process provides several steps in an effort to assure the 

"coordinated planning . . . necessary in order to protect the public interest associated with 

the shorelines of the state while, at the same time, recognizing and protecting private 

property rights consistent with the public interest," another stated policy of the SMA.  

RCW 90.58.020.  Not only must the permit applicant seeking a shoreline substantial 

development permit demonstrate that its proposal is consistent with the local master 

program and the SMA, but public input into that determination is provided through (1)

public notice of the application, (2) an opportunity for members of the public to comment 

and receive notice of a final decision, and (3) the public's opportunity to participate in 

any hearing held on an application and to appeal the permit decision to the shorelines

hearings board before construction may proceed.  RCW 90.58.140(4), (7); RCW 

90.58.180(1), (2); Buechel v. Dep't of Ecology, 125 Wn.2d 196, 205, 884 P.2d 910 

(1994).  

       For projects recognized as exempt by the local government, there is no public 

process and no appeal to the shorelines hearings board.  The project is still required to 

comply with the SMA because "[a]n exemption from the substantial development permit 

process is not an exemption from compliance with the [SMA] or the local master 

SMA, however, but a collateral consequence of the provisions of the particular master 
program at issue here.

                                               13 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

program, nor from any other regulatory requirements." WAC 173-27-040(1)(b).  And the 

land use decision may be challenged under LUPA, as Ecology did here, although it is the 

challenger that bears the burden of demonstrating that one of the standards for appeal has 

been met.

       Exemptions from the substantial development permit process are construed 

narrowly.  Only developments that meet the precise terms of a listed exemption may be 

granted exemption. WAC 173-27-040(1)(a).  And exemptions, as with all statutory 

provisions, must be interpreted and construed "'so that all the language used is given 

effect, with no portion rendered meaningless or superfluous.'"  See G-P Gypsum Corp. v. 

Dep't of Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (2010) (internal quotation marks 

omitted) (quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)).  

       When we construe the owner-noncommercial use exemption narrowly, precisely,

and by giving effect to all of its language, we note three of its requirements relevant to 

our analysis: (1) it is an exemption for construction of the dock; (2) the construction must 

be for "the . . . use" of "the owner, lessee, or contract purchaser of single and multiple

family residences"; and (3) it must be for such owner's, lessee's, or contract purchaser's 

private "noncommercial" use. RCW 90.58.030(3)(e)(vii) (emphasis added).

       Ecology places its principal reliance on a textual argument: that use of the definite 

article "the" before "owner, lessee, or contract purchaser" rather than the indefinite article

                                               14 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

"an" requires that we construe the exemption to apply only where the owner, lessee, or 

contract purchaser who is requesting permission to construct the dock will be its private 
noncommercial user.8  Use of a definite rather than indefinite article is a recognized 

indication of statutory meaning.  See In re Estate of Garwood, 109 Wn. App. 811, 816, 

38 P.3d 362 (2002) (contrasting use of "an award" versus "the award" in interpreting 

meaning); Tewell, Thorp & Findlay, Inc. v. Cont'l Cas. Co., 64 Wn. App. 571, 576, 825 

P.2d 724 (1992) (meaning of "a" claim is broader than "the" claim).  "The rules of 

grammar . . . provide that the definite article, 'the', is used 'before nouns of which there 

is only one or which are considered as one.'" State v. Neher, 52 Wn. App. 298, 300, 759 

P.2d 475 (1988) (quoting A.J. Thomson & A.V. Martinet, A Practical English Grammar 3 
(3d ed. 1982)), aff'd, 112 Wn.2d 347, 771 P.2d 330 (1989).9 The indefinite article "a" or 

"an" is used, on the other hand, "'when the individual in question is undetermined, 

       8 We do not mean to suggest here or elsewhere in the opinion that a local 
jurisdiction cannot allow application for the exemption to be made by an agent or 
attorney-in-fact; only that the exemption may be granted solely for construction of the 
dock for the private, noncommercial use of an existing, identified owner, lessee, or 
contract purchaser of a single or multiple family residence.
       9 In Neher, both the Court of Appeals and Supreme Court ultimately construed 
"the proximate cause" as used in the vehicular assault statute in a nonrestrictive manner, 
although on rationales not applicable here.  The Court of Appeals concluded that a 
restrictive reading of "the" in the vehicular assault statute would lead to an absurd result 
and rejected what it characterized as a "literal reading" of the statute on that basis.  52 
Wn. App. at 300.  The Supreme Court held that as used in the vehicular assault statute, 
"the" modifies "proximate" as opposed to indicating singularity.  112 Wn.2d at 350-51.

                                               15 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

unidentified, or unspecified.'"  State v. Ose, 156 Wn.2d 140, 146, 124 P.3d 635 (2005) 

(quoting Webster's Third New International Dictionary 1 (2002)).

       Coyote Rock and the city do not directly address Ecology's grammatical argument.  

But both contrast the dock exemption at subsection (vii) of RCW 90.58.030(3)(e) with

the exemption for construction of single family residences that immediately precedes it at 

subsection (vi).  That subsection exempts

       [c]onstruction on shorelands by an owner, lessee, or contract purchaser of a 
       single family residence for his own use or the use of his or her family, 
       which residence does not exceed a height of thirty-five feet above average 
       grade level and which meets all requirements of the state agency or local
       government

as contrasted with the dock exemption, which again exempts

       [c]onstruction of a dock, including a community dock, designed for 
       pleasure craft only, for the private noncommercial use of the owner, lessee, 
       or contract purchaser of single and multiple family residences 

subject to the $10,000 fair market value limitation.  

       Coyote Rock and the city argue that the fact that the legislature did not include the

limiting language "for his own use or the use of his or her family" in exempting docks 

implies that it intended no such limitation.  But an alternative explanation lies in the 

different structure of the two exemptions.  The residence exemption first identifies 

generally who can rely on the exemption, followed by a qualifier requiring personal use.  

The dock exemption reverses the order, describing first the required private use and then 

                                               16 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

a definite use-related identification of who can rely.  "Construction . . . for the . . . use of 

the owner," although structurally different, has a meaning that (for relevant purposes) is 

parallel to, not different from, "Construction . . . by an owner . . . for his own use."  Both 

exemptions link construction of the proposed development to an identified owner's or 

homeowner's qualifying use.

       Our Supreme Court attached significance to this sort of linkage between eligibility 

for a development exemption and a qualified user in Campbell & Gwinn.  In that case, it

examined whether the developer of a 20-lot residential development could avoid the 

requirement to secure a groundwater permit for a water system by applying instead to 

drill individual wells for each lot, relying on an exemption for single domestic use wells 

withdrawing no more than five thousand gallons a day.  The applicable statute forbade 

withdrawal of public waters or construction of a well without obtaining a permit from 

Ecology subject to several exceptions, the pertinent one providing:

       "EXCEPT, HOWEVER, That any withdrawal of public ground waters for 
       . . . single or group domestic uses in an amount not exceeding five thousand 
       gallons a day . . . is and shall be exempt from the provisions of this 
       section."

146 Wn.2d at 8 (quoting RCW 90.44.050).  The court recognized that the developer had 

elected to seek individual well exemptions because "obtaining new permits to appropriate 

water within a reasonable time ha[d] become virtually impossible."  Id. at 18.

                                               17 

No. 29675-0-III
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       A majority of the court concluded that the eligibility of a developer for the 

exemption must be tested by its own purpose and use for the water rather than as a proxy 

for future home purchasers, because "[t]he developer of a subdivision is, necessarily, 

planning for adequate water for group uses, rather than a single use."  Id. at 12.  It 

reasoned that the two concepts of constructing a well and withdrawing water must be 

"linked" for purposes of the exemption, explaining:  

       The same two concepts must be linked for purposes of the exemption from 
       the permitting process because that is precisely what the exemption is -- an 
       exemption excusing the applicant from permit requirements.  The one 
       seeking an exemption from permit requirements is necessarily the one 
       planning the construction of wells or other works necessary for withdrawal 
       of water and is the one who would otherwise have to have a permit before 
       any construction commences or wells are dug.

Id. at 13. It concluded that "[t]he developer may not claim multiple exemptions for the 

homeowners."  Id. at 14.  

       The Campbell & Gwinn majority also recognized that whether it construed the 

exemption as available only to individual homeowners or as available to developers made 

a difference that should be examined in light of policies and legislative intent.  It 

observed:

       [U]se of the exemption by developers will predictably and greatly expand 
       unpermitted water use in this state.  Individual, single family residential use 
       of the exemption (or group uses not exceeding 5,000 [gallons per day] in 
       total) is simply not comparable to what can occur if the exemption is 
       rewritten to allow for multiple wells in large developments.

                                               18 

No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

Id. at 14 n.4.  Whether a risk of increased water use was real and mattered was a point of 

disagreement for several members of the court; two dissenting opinions suggested that 

since any homeowner would need to drill a well for its domestic use and Ecology had 

authority to monitor the amount of withdrawals, the risk of increased cumulative impact 

was imagined unless the court's objective was to deter residential development altogether.  

See id. at 23-28 (Owens, J., dissenting), id. at 21-23 (Sanders, J., concurring in dissent).

       In this case, by contrast, developer eligibility for the exemption presents an 

undeniable potential for increased impacts of the sort that concerned the Campbell & 

Gwinn majority.  No future homeowner in Coyote Rock needs his or her own individual 

dock.  Many may not want one or choose not to build one.  We agree with the 

observation of Ecology that 

       spec docks by their very nature are constructed without knowledge of the 
       specific needs or desires of the future homeowner.  Inevitably, some 
       homeowners will decide they do not want the dock, or they will want a 
       different size or type of dock to better fit their needs.  The construction of 
       spec docks built for resale necessarily entails incurring environmental harm 
       without, at least in some cases, any corresponding benefit to the 
       homeowner.  

Br. of Appellant at 17.  

       Campbell & Gwinn does not hold, and we do not suggest, that whenever a statute 

regulates development because of legislative concern with cumulative impacts then no

residence- or homeowner-based exemption may be relied upon by a developer.  Whether 

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No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

a developer may rely on an exemption will turn in each case on the language of the 

statute and the exemption.  But allowing a developer to rely on a residence- or 

homeowner-based exemption as the proxy for hoped-for future home purchasers may 

predictably expand impacts, as recognized in Campbell & Gwinn, and thereby conflict

with policies and concerns of the legislation.  Accordingly, where, as here, the plain 

language of the exemption ties it to construction for the private use of the owner, we will
not construe the exemption as available for speculative construction.10  

       Coyote Rock finally argues, correctly, that the dock exemption does not 

distinguish between types of owners, lessees, or contract purchasers who are eligible for 

the exemption.  It was therefore entitled to seek exemption in its own right, even if not as 

a proxy for future homeowners.  But as previously observed, eligibility for the exemption 

depends on construction of the dock for a private "noncommercial" use.  

"Noncommercial" is not defined by the SMA.  Its ordinary meaning is "not commercial,"

as in "not used in commerce," "having no commercial importance," or "not commercially 

motivated."  Webster's Third New International Dictionary 1536 (1993). If the 

       10 Coyote Rock legitimately distinguishes this case from one rationale relied upon 
by the majority in Campbell & Gwinn: that the exemption for water permitting was 
available for limited withdrawal for single or group domestic uses, and the developer's 
eligibility would be evaluated as a group use.  146 Wn.2d at 12.  That rationale has no 
application here.  But it does not detract from the majority's other rationales for its 
decision, which do apply.

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No. 29675-0-III
Dep't of Ecology v. City of Spokane Valley

construction of docks for lots 23 and 9 can be said to have been designed for Coyote 

Rock's "use" at all, then it was for resale, a clearly commercial use.

       Because Coyote Rock was not eligible for the exemption relied upon by the city, 

the superior court's order denying Ecology's land use petitions must be reversed.

       Given our disposition of the issue of statutory construction, it is not helpful for us 

to reach Ecology's second argument.  Should some form of its argument be raised in

proceedings following remand, it will be on a different record, subject to different 

burdens and arguably subject to legal authority that did not apply to the city's decision on 

the exemption issue.  

       We reverse and remand to the superior court with directions that it reverse the 

exemptions issued by the city.

                                                ____________________________________
                                                Siddoway, J.

WE CONCUR:

___________________________________
Korsmo, C.J.

___________________________________
Kulik, J.

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