High court ruling shifts water adequacy burden to county
By Marcy Stamper
The Okanogan County commissioners have adopted an emergency ordinance to address a state Supreme Court ruling that halts new development without proof of water.
The emergency ordinance establishes a new process for reviewing building applications following the October high court decision, which requires proof of legal and available water before any new development can take place.
The emergency ordinance was adopted unanimously on Tuesday (Nov. 8). It creates a system where the county’s hearing examiner will review all new applications for building permits, subdivisions and other land-use matters so a property owner can demonstrate there is adequate water for the development. Developers will also have to prove they have the right to use the water.
The emergency ordinance was necessitated by a ruling in a Whatcom County case. The justices ruled that the county is responsible to ensure there is enough water for streams and fish before allowing new development. The ruling applies to all counties across the state, according to Sandy Mackie, special counsel for Okanogan County.
Okanogan County’s emergency ordinance covers all land-use applications issued by the county that rely on “permit-exempt wells,” which covers almost all new building in the county. State law allows users of small quantities of groundwater to construct these “exempt” wells without obtaining a water-right permit from Ecology.
Under this rule, people are entitled to use up to 5,000 gallons per day for domestic use, 5,000 gallons for industrial or commercial use, and to water a half-acre garden or lawn as well as livestock.
Change in law
The Supreme Court ruling has already changed state law, Mackie told the commissioners and planning staff. No one in the county can take new water from an existing well or drill a well without first demonstrating that the water is available, he said.
This means that even parcels that already have a well — but no building or other development — would have to prove that using the water would not affect base water flows.
Anyone seeking to drill a new well to build a residence or business would have to go through the same process. “A building permit assumes there is additional demand on water,” said Mackie.
Current water users are not affected, but anyone wanting to take additional water from an existing well — for example, for a second residence or a business — would also have to prove water availability, he said.
The county’s new procedure puts the matter before the hearing examiner, who is equipped to take testimony, said Mackie, who predicted “major contested hearings.”
“Okanogan County is in an unfortunate position. We’re already under the gun because we’re being sued over water availability,” said Mackie. Mackie was referring to two lawsuits challenging the county’s comp plan and zoning ordinance for allowing more development than the county’s water supply can sustain.
Mackie and county officials are confident that the county’s new comprehensive plan and zoning ordinance comply with the court ruling because the documents require proof of water before any development can occur.
Studies of the two watersheds in the county — the Methow and the Okanogan water resource inventory areas (WRIAs) show that both regularly fall below base flows as defined by Ecology, said Mackie.
“If Ecology wants to put a moratorium on all building in Okanogan County, they could, because all rivers fall below base flows,” said Mackie.
Mackie expects all counties in the state are awaiting clarification from Ecology about how the agency calculates dropping below minimum flows — for example, whether they use an average or just one instance a year.
In the past, counties relied on Ecology’s determination that water was available for exempt wells. With the Supreme Court ruling, that responsibility shifts to the counties, said Mackie.
Ecology will still be responsible for “certificated” water rights, which are issued to larger water users.
Support for measure
Findings accompanying the county’s emergency ordinance urge holders of water rights to create water trusts or banks to make excess water available to others.
A water trust allows the holder of a water right to set aside water that isn’t needed but to draw on it again in the future if, for example, the person switches to a more water-intensive crop, according to Mackie.
A water bank buys up water rights that are not in use for sale to others who need the water for development or irrigation. With a water bank, the original water-right holder relinquishes future access to the water.
County planning staff will assemble information about water availability in reaches throughout the county, drawing on data from Ecology, well drillers, and on hydrological studies. They hope to produce explanatory materials to help the public understand the rules and the county’s obligations, said Mackie.
The findings reveal frustration with the court’s ruling. They state that the Supreme Court decision will have “a direct effect on the cost and availability of new housing in rural areas.” The decision will make efforts to obtain permits for new exempt wells more costly and time-consuming, they say.
The county plans to press Ecology for guidance about how to measure water availability. They also want Ecology to update guidelines for allowable uses in the county’s watersheds.
The Supreme Court decision makes it imperative that Ecology and the Washington Department of Fish and Wildlife not transfer water rights out of the county, to avoid jeopardizing the rights of future domestic, commercial or agricultural development, the county says in the findings.
By law, the county must hold a public hearing on the emergency ordinance within 60 days. The ordinance can remain in effect for up to six months.
Because this issue is connected with the a set of development regulations the county was already working on, the public hearing on those requirements is being continued and people may submit comments on that document, as well as the new emergency ordinance, at any time.
The commissioners have scheduled a public hearing on Monday, Dec. 19, at 1:30 p.m. in their hearing room in Okanogan.
Copies of the development regulation and the emergency ordinance are available on the planning department website at www.okanogancounty.org/planning.
For the emergency ordinance, click on the link for “Ordinance 2016-5” (“An ordinance pertaining to land use decisions requiring the use of water from other than a certificated source”). The latest draft of the development permit procedures is at the link for “Updated draft for continued hearing on October 10, 2016.” Both are next the heading that reads “Draft Title 20: Development Permit Procedures and Administration.”
For more information, contact planning director Perry Huston at (509) 422-7218.