Planning director will review future building permit applications
By Ann McCreary
The county planning director will determine whether there is adequate, legal water available as part of the process of obtaining a new building permit in Okanogan County, commissioners decided last week.
Grappling with a Supreme Court decision that said counties, not the state, are responsible for making sure water is available for new homes, commissioners approved a new ordinance that makes the decision about legal water availability part of the county’s administrative process for approving new home construction.
Commissioners rescinded an emergency ordinance passed in November that would have required county residents to who plan to dig wells for new homes to present evidence to the county’s hearing examiner proving that water is physically and legally available.
County officials adopted the emergency ordinance last fall in response to a state Supreme Court ruling that shifted the burden to counties to determine that water is physically and legally available for new uses.
That ruling (often referred to as “Hirst” for the lead plaintiff) also said counties must ensure that new uses do not impair instream flows for fish. The Hirst ruling applies to “permit-exempt” wells, which are primarily used for single-family home development.
In a Dec. 19 public hearing, numerous county residents objected to the emergency ordinance. They said requiring permit applicants to make a case about water availability before the county hearing examiner would be burdensome, costly and time-consuming.
A revised ordinance approved Dec. 28 gives the county planning director responsibility for determining water availability, as part of the administrative process for building permit approval.
“Building permit [applications] already go to the planning department. This is another part of the check list” for approval, Sandy Mackie, an attorney for the county, told commissioners.
“The planning director will make the decision based on the record and publish his decision,” Mackie said. “This will simplify the process by making it administrative.”
The burden of proof of the physical and legal availability of water will be on the applicant, Mackie explained after the commission meeting. “The property owner may need to bring in additional information.”
Applicants will need to work with well drillers or contractors to prove availability of water and “show they’re not interfering with a senior water right,” including instream flow requirements set by the state for rivers and streams.
Mackie and commissioners said they did not expect the new ordinance to add to the amount of time required to process a building permit application.
The impact of the Hirst decision on development in the Methow Valley is still being evaluated, Mackie said. State law allocates 2 cubic feet per second (cfs) to the seven reaches in the Methow River basin for beneficial uses.
“The county is looking into the viability of the 2 cfs in the Methow … and whether it’s available for use and under what circumstances,” Mackie said. “We hope to have an answer [from the state Department of Ecology] in a few weeks.”
Under the ordinance adopted last week by the commissioners, the decision of the county planning director regarding water availability can be appealed to the county hearing examiner.
“If the planning director finds that there is not sufficient, legal water available, it would go to the hearing examiner,” Mackie said. “The decision of the planning director may be appealed to the hearing examiner by an affected party, applicant or affected water rights holder.”
The appeal to the hearing examiner would be an “open record appeal,” meaning that people can bring in new evidence, Mackie said.
For instance, adjacent property owners or people living within the same reach of a river or stream could provide evidence that they would be adversely affected by a proposed new water use.
The focus of the appeal would be solely focused on the issue of whether adequate water “is lawfully available,” Mackie said.
Following the hearing examiner’s decision, any further appeal would go to the county Superior Court under the state’s Land Use Petition Act, Mackie said.
Commissioners unanimously approved the new ordinance, but made it clear they didn’t want the new responsibility for determining legal water availability that was thrust on counties by the Supreme Court’s Hirst decision.
“This has been dumped on us by the Supreme Court of the state of Washington,” said Commission Chairman Jim DeTro.
“Some counties just said, ‘We’ll get a hydrologist report.’ Who has $100,000 for a hydrologist report on a $20,000 piece of property?” DeTro said.
The ordinance adopted by the county to address the water issue “is what we think is going to fix this for now,” said outgoing Commissioner Sheila Kennedy, who was replaced by Chris Branch on Dec. 30 after losing to him in the November election.
“This is a high priority for legislators in the next session, and who knows what they’re going to do,” Kennedy said.
Before the Hirst decision, Mackie said, counties were able “to rely on the fact that Ecology had not closed a basin to domestic use” to approve new wells for homes. “The county could assume water was available,” Mackie said.
After Hirst, “the county has to make its own case,” he said. “That’s the burden the Supreme Court gave us.”
The court stated that counties cannot approve new development using permit-exempt well if there would be impairment to instream flows or impact water bodies closed to development by Ecology.
Permit-exempt wells allow people to use up to 5,000 gallons per day for domestic use; 5,000 gallons for industrial or commercial use (including irrigation); and providing water for livestock or watering non-commercial lawns or gardens up to one-half acre in size.
Any other withdrawal of groundwater other than permit-exempt wells requires a water right permit or certificate from the state Department of Ecology.
Okanogan County is already in litigation over how it handles water in its comprehensive plan and zoning code. The legal action was brought by Futurewise, the same nonprofit environmental organization that was successful in the Hirst case.
The pending lawsuit filed by Futurewise and Methow Valley Citizens Council alleges the county does not explicitly address water quantity and quality in its comprehensive plan and zoning code.