‘Determination’ is not the same as a water right

By Marcy Stamper

More than 100 people have received a certificate of water availability from Okanogan County, stating that the certificate holder has water for single domestic use and stock watering.

The certificates, complete with a decorative border, are part of the county’s response to a 2016 Washington Supreme Court ruling in the Whatcom County “Hirst” case that requires counties to determine that anyone who wants to use a well for a new house has enough water — and the legal right to use it. The applicants also must show that the new water use won’t affect any existing homes or deplete water reserved for rivers and fish.

Washington’s 39 counties have taken a variety of approaches to Hirst, from a de facto moratorium on new houses to issuing building permits the same way they always have, with no additional check on water. King County is appending a caveat to all new building permits saying it’s the applicant’s responsibility to confirm that the proposed water use won’t impair any existing users.

Okanogan County’s response is among the most ambitious, said Natalie Kuehler, an attorney with Winthrop-based Ryan & Kuehler who specializes in water rights and land use.

After a series of public hearings last fall, the county gathered hydrogeological studies, watershed plans and maps to help evaluate water availability on the parcel level. The county asks anyone who intends to use a well for the first time to fill out a water-availability questionnaire, where they must identify the closest water body, the proposed water use, and when the well was drilled.

Once county planners complete their preliminary review, the county publishes a formal legal notice, giving anyone who believes the new water use will impair an existing one to challenge it.

As of this week, Okanogan County had issued 114 certificates of water availability, and another 43 are pending. The county has denied at least one, where the applicant didn’t document that the well wasn’t drawing from a stream that has already been closed to new appropriations, said Perry Huston, Okanogan County’s planning director. Half-a-dozen water certificates have been appealed.

People who’ve owned land with a well on it for decades don’t get any special priority unless they can show they’ve used that water while living in a trailer or other temporary lodging while building, said Huston.

Wells exempt from what?

The Hirst ruling applies to what are called permit-exempt wells, which are used across the state for rural development. “Permit-exempt” means that the person who wants to use well water for a household doesn’t need to apply to the Washington Department of Ecology for a permit for a water right.

State law gives people the right to use a substantial amount of water from these wells. Exempt wells can provide up to 5,000 gallons a day for indoor domestic use, which Kuehler said could supply about 14 houses. The exempt-well law also allows people to irrigate a half-acre lawn or garden, water an unlimited number of livestock, and supply commercial activities including agriculture.

Although you don’t need a permit from Ecology to use a well for these purposes, once you do use it, it’s considered a water right and is governed by the state’s long-standing “first in time, first in use” principle.

It’s not clear what people think Okanogan County’s new water certificates mean, and property owners, state agencies and the courts are apt to have different interpretations, said Kuehler.

“I’m concerned that people think they’re getting a water right or an actual determination that they have a permissible use of water,” said Kuehler. “What they’re getting is a county determination that allows them to get a building permit.”

Huston agreed. “It’s not a water right — the county can’t issue water rights. It’s tangible evidence of the county’s decision” on water availability, he said.

Huston acknowledged that people who get the certificates may not understand that they don’t constitute a water right. “It’s a good question,” he said. “I often have to explain the difference between a water right and a permit-exempt well.”

So what does Okanogan County’s certificate of water availability mean?

“It’s a complicated answer to a simple question,” said Dave Christensen, water resources program development section manager for Ecology. “Does it give them a water right? Technically, no. But it gives them something to establish a water right with.”

Tracking water use

Counties have been evaluating water availability and issuing some type of certificate for years — way before Hirst, said Christensen. Since a 1991 state law, each applicant for a building permit has been required to provide evidence of sufficient water for the building, he said.

Water use in Washington is also governed by instream-flow rules to protect water for streams and rivers. There are rules covering about half of the 62 watersheds in the state but, because the rules are specific to individual watersheds, they add another layer of complexity, said Kuehler.

The 1976 Methow rule is one of the oldest, and it’s unusual because it establishes a priority for water uses, with single-domestic residences at the top, followed by livestock, instream flows, and irrigation and public water supply, said Christensen.

Okanogan County has six different watersheds, but only two — the Methow and Okanogan — have instream-flow rules, according to Brook Beeler, a spokesperson for Ecology. Unlike the Methow rule, the rule for the Okanogan watershed doesn’t reserve water for domestic use, but it exempts domestic wells from the rule, said Huston.

In the Methow watershed, many basins (such as Wolf Creek, Beaver Creek and Patterson Lake) are already closed to new uses of surface water, so people must show that their well is drawing only groundwater that’s not in continuity with the surface water before they can use it for a new house, said Kuehler.

But even the boundaries of those closed basins are being challenged. The Confederated Tribes and Bands of the Yakama Nation have appealed at least one of the county’s decisions, contending that the maps the county used are outdated and don’t accurately represent continuity between groundwater and closed rivers or streams.

“At some point, hydraulic continuity becomes philosophical,” said Okanogan County Commissioner Andy Hover at an informational meeting about water and the Hirst decision last month. “For example, if you’re drilling your well near Pateros, are you drawing from Wolf Creek?” he said.

Answering these questions in the Methow basin is particularly complex because of the Methow’s geology and its limited options for water storage, said Hover.

Water that comes out of the faucet doesn’t simply vanish — much of it is returned to the ground through percolation from septic systems, said Hover. “When you’re brushing your teeth, how much water did you actually consume?” he said.

Hover said he’s heard some people speculate about the impact of people who bring bottled water into the county or who drink three bottles of beer, ultimately helping recharge the groundwater through septic systems.

Okanogan County has also been researching the potential for natural systems such as high-elevation beaver dams to provide gradual, late-season releases of cool water, said Hover.

Running out of water?

After establishing base flows for streams and rivers, the Methow rule set aside a reserve of 2 cubic feet per second (cfs) for single-domestic use in each of seven reaches in the Methow Valley. The reaches start with the Headwaters, followed by Early Winters, Upper Methow, Chewuch, Middle Methow, Twisp River and Lower Methow.

Since plans for a major resort near Mazama were abandoned, there has been relatively little development in Early Winters, but other reaches have experienced considerable growth, and there are thousands of buildable parcels.

To estimate the amount of water available — and to debit all new uses — Okanogan County is using an estimate from a 2011 study done for the Methow Watershed Council by Aspect Consulting that found the average household consumes 710 gallons for indoor use and irrigation.

In fact, the Aspect study found that if a house were built on every existing parcel, two of the reaches — the Upper Methow and Lower Methow — would run out of water. While the other five reaches could provide 710 gallons a day for about 4,500 new homes, the Lower Methow could end up with 24,000 homes without adequate water, according to their findings.

Moreover, no one has been keeping tabs on how much of that 2 cfs is being consumed.

Okanogan County is trying to rectify that. County planners have been constructing a comprehensive database to track existing uses and subtract all new ones as they issue building permits, said Huston.

“We’re learning many wells have been drilled but not used,” he said. “The moral of the story is, there’s a lot of work to do to figure out exactly where we are.”

Ecology’s role

While the Hirst decision handed the decision on water availability to the counties, Ecology is still expected to provide technical assistance, said Christensen. But making these determinations requires expertise and staff, and neither the counties nor the state feel equipped to take it on. “We have heard from many counties that they lack the technical expertise,” said Christensen.

“We’re doing our best with the information we’re gaining. We have no hydrogeologist on staff,” said Hover.

Hover said Ecology staff have been very receptive and are looking for data that could help the county determine continuity between surface and groundwater.

“We’re actively taking steps to try to get water-resource management to a point where the county won’t be in the same position as Whatcom County was — vulnerable to litigation,” he said.

“I wish this were all easier,” said Kuehler. “But in the end, I’m happy, because it really is a consumer-protection issue.”

Learn about water

The Methow Watershed Council is hosting free presentations about water science and law:
• “Visible and Invisible Rivers: Hydraulic Continuity Between Streamflow and Groundwater in the Methow Valley,” with Chris Konrad, research hydrologist with the U.S. Geological Survey, on Oct.12, from 6-8 p.m. at the Methow Valley Community Center.
• “Climate effects on Water Supply,” with Amy Snover, director of the University of Washington Climate Impacts Group, in November (date, time and location to be announced).
• “Protecting Your Liquid Assets with the Trust Water Rights Program,” with Kristina Ribellia and Greg McLaughlin, project managers with Washington Water Trust, on Jan. 9, 2018 (time and location to be announced). Co-sponsored by Methow Conservancy.
• “Looking Under the Hood of Water Banking,” with Jason McCormick with McCormick Water Strategies, in February (date, time and location to be announced).