By Marcy Stamper
To comply with an October ruling by the state Supreme Court that requires anyone who wants to build a house to prove there is enough water — and that they have the right to use it — Okanogan County is proposing a new application process.
The court’s decision applies to anyone planning a new use of water for a house or significant expansion that will use additional water. The ruling covers what are called “permit-exempt wells,” which essentially covers all wells for single-family domestic use.
The ruling would apply to new wells and to existing wells that have not been put to beneficial use. For example, if a person has used a well for drinking and bathing in a mobile home in preparation for building a permanent residence, that would be considered beneficial use, said Okanogan County Planning Director Perry Huston. Solely irrigating a garden or vacant land is not considered beneficial, he said.
State law allows users of small quantities of groundwater to construct these “exempt” wells without obtaining a water-right permit from the state Department of Ecology. Under this rule, people are entitled to use up to 5,000 gallons per day for domestic use (cooking and bathing), 5,000 gallons for industrial or commercial use, and to water a half-acre garden or lawn as well as livestock.
Having a building permit or an approved site analysis would not be sufficient if the person has not used the water yet, said Huston.
The court’s ruling does not apply to community or municipal water systems or anyone with a water right issued by Ecology.
Whatcom County case
The county is taking these steps to comply with the ruling in a Whatcom County case where the high court said that anyone planning a new use of water must first show the water is available — and that it doesn’t impair any senior water rights. The case is often called the “Hirst decision,” for the lead plaintiff.
Since the early 1970s, instream flows — the amount of water available in rivers for fish — have been considered a senior water right, according to Sandy Mackie, special counsel for Okanogan County.
“The concern is real, whether it deals with fish, or climate change, or the ability to develop at all,” said Mackie.
Mackie and Huston provided an overview of the proposed process at a public work session on Wednesday (Dec. 7). They also answered questions from the public about how the county will interpret hydrology, impacts on fish, and the effect on real estate transactions, among other issues.
The county proposes using the planning department’s existing site-analysis process to evaluate the availability of water. Anyone planning a new water use would fill out the site analysis and the county’s hearing examiner, Dan Beardslee, would review the application and determine if there is adequate and legal water for the project. The process includes public notification and a public hearing.
Beardslee’s decision could be appealed by senior water right holders who believe the new use will impair their water use. It could also be appealed by the applicant.
To make the process easier, Okanogan County plans to gather as much information as possible about water availability on individual lots and basins throughout the county. The record will include well logs, hydrology studies, and weather and precipitation statistics. It will also include information from gauging stations on the Methow and Okanogan rivers and a map of closed basins. The county hopes to gather the data about water availability by the end of January.
“The idea is to build a record so individual landowners don’t have to,” said Huston, although landowners are encouraged to gather as much evidence as possible to demonstrate water availability.
County officials hope this research will ultimately set a pattern for where water is and isn’t available, although decisions will still be made on a case-by-case basis, said Mackie.
The court’s ruling creates a significant new burden on potential developers and counties, but the ability to contest any new water use already existed, said Huston.
“These cases are already here — what’s new is that the burden is now on the county. We can no longer defer to Ecology,” said Mackie. “We’re trying to create a process that’s as user-friendly as possible, and still prove water is physically and legally available.”
The court’s ruling does pose an increased risk as to whether someone could build on vacant land. A prospective buyer or seller could submit the site-analysis application before completing a transaction, Huston said.
The county commissioners are holding a public hearing on an emergency ordinance they adopted to deal with the water requirement, which includes the proposal to use the site analysis, on Monday (Dec. 19) at 1:30 p.m. in their hearing room in Okanogan. Copies of relevant documents 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”) next to the heading that reads “Draft Title 20: Development Permit Procedures and Administration.” The Supreme Court opinion is also available there.For more information, contact Huston at (509) 422-7218.