Developer, state dispute water level

The newest phase of the Coyote Rock development on the Spokane River may be in jeopardy over a dispute about where the ordinary high-water mark should be. Whether the project can move ahead rests with Spokane Valley hearing examiner Mike Dempsey.

During a hearing this week, an attorney for the developer, Neighborhood Inc. of Coeur d’Alene, argued that they were simply using the ordinary high-water mark set by the state Department of Ecology in 2007. A representative from Ecology countered that the ordinary high-water mark set then was only for the property west of the Centennial Trail footbridge near Plantes Ferry Park, not the section east of the bridge being platted for development.

The agency noticed in March that the ordinary high-water mark shown on the site plan was incorrect. “We looked much more closely at the river bank,” Eastern Region wetlands specialist Jeremy Sikes said. The plan maps didn’t match “what we saw on the ground,” he said.

Sikes said he visited the site again in April with a representative of the developer, and they placed flags marking the ordinary high-water mark based on the vegetation on the shore. A survey was to be done to set the new mark.

“I was just informed … that the survey was incomplete or not done because the flags had gone missing,” Sikes said. “It’s disappointing that we weren’t informed that the flags were missing or that the survey wasn’t done.”

The high-water mark should be “significantly landward” of where it is shown on the site map, Sikes said.

Neighborhood Inc. attorney Chuck Lempesis called Ecology’s position “untenable and inappropriate.” He said his client has been using the ordinary high-water mark set in 2007 using a Ponderosa pine on the north shore as a guide. The Coyote Rocks development is on the south shore.

The first phase of Coyote Rock, west of the footbridge, was built using a 75-foot setback from the ordinary high-water mark. The second phase, called Trailside, is just east of the first and fronts the Centennial Trail. It includes 13 residential lots on 2.8 acres.

Sikes said it is very clear in written statements that the Ecology representative who visited the site in 2007 “absolutely did not survey east of the bridge.” The mark used by the developer west of the bridge is not in dispute, he said. “Upstream of the bridge, stuff happens,” he said. The river flow is split by large rocks in the river, and earth work done in the past has created pools off to the side of the main channel, Sikes said.

At the core of the debate is a small inlet that reaches almost as far back as the Centennial Trail, just east of the bridge, at high water flows. Lempesis called it an artificial barrow pit created by past mining.

“That’s probably true,” Sikes said, but, “That’s not relevant.”

Case law states that the ordinary high-water mark follows the water, even if it’s for something artificial, like a canal, he said. “The ordinary high-water mark changes as the indicators change.”

If the barrow pit is included as part of the shoreline, the 200-foot buffer required in the area would “wipe out most of the Trailside subdivision,” Lempesis said. Since it was man-made, it should not be considered part of the shoreline, he said. “They didn’t factor that in when they did the Centennial Trail,” he said. “Don’t make a mountain out of a barrow pit.”

The hearing examiner is expected to release a written decision in about two weeks.