Development can go ahead, with some usage caps
People who plan to use a well for a new home no longer have to assemble scientific and legal proof that they have enough water — and the right to use it.
After struggling all last year to resolve confusion caused by the 2016 state Supreme Court “Hirst” ruling on water, the state Legislature passed a law in January that clarifies the process for domestic wells.
The law lets people proceed with development but restricts the amount of water they can use, according to the watershed they’re in. It sets out various scenarios and timelines around the state, depending on whether they have a watershed plan or a rule governing instream flows — the amount of water that must be returned to rivers.
“In the Methow, it’s basically business as usual,” said Okanogan County Commissioner Andy Hover about the new law. Because the Methow has both a watershed plan and an instream-flow rule that reserves a certain amount of water for domestic use, the Methow is considered to have enough water for thousands of new homes, he said.
The biggest change in Okanogan County under the new legislation is that the county has dropped the requirement for a water-availability review before anyone can drill a well — or even use an existing well for the first time. The county began doing this review last year to comply with the Hirst ruling.
The Okanogan watershed is on a list of 15 watersheds with old plans that need to be updated because they don’t address permit-exempt wells. The concern is that water drawn from these wells divert too much from streams. “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.
The new Okanogan watershed plan is due in February 2021; until then, the law limits water use in the Okanogan to 3,000 gallons a day. Existing wells are grandfathered in as of Jan. 19 (the date the law took effect) and can be used to supply a house, said Hover.
The new law modifies the amount of water that can be drawn from exempt wells. It sets a cap of 5,000 gallons a day, but a maximum daily average of 3,000 gallons. In watersheds that have to create new plans, like the Okanogan, the law restricts daily usage to 3,000 gallons. Watersheds with no plans at all are limited to 950 gallons, and that could be capped at 350, for indoor use only, during periods of drought.
Confusion, economic impacts
Counties around the state reacted differently to the Hirst decision, from a de facto moratorium on new development to essentially ignoring it. Okanogan County took one of the most proactive approaches, conducting an in-depth review of each new water use and giving other water users a chance to object before it would issue a certificate of water availability.
That process created a backlog and created havoc for owners of raw land when they found they might not be able to build a house after all. Because of that, Hirst had significant economic impacts on the real estate industry, well drillers, and the construction trades.
“Who would buy a property they could not, without reasonable certainty, develop?” said Dave Thomsen, branch manager of Coldwell Banker Winthrop Realty, in his January market report. Thomsen said the Hirst decision had “created an environment of immense confusion for land sales.”
Thomsen acknowledged that the county was doing its best. “The confusion came honestly: the county was scrambling,” since the courts’ decision “thrust the responsibility on counties to verify whether a property is eligible to receive water,” he said.
The new law shifts that responsibility back to the state Department of Ecology. It also provides some money to help Ecology evaluate water availability.
Overall, real estate agents hailed the new law. “The Hirst decision regarding water availability and Okanogan County’s unique policy and fees have cost the landowners time and money. Fortunately, the state Legislature has saved us,” said the Methow Valley Windermere office in an update.
But others criticized the Legislature for passing a law that doesn’t protect water supplies and fish. The Center for Environmental Law & Policy (CELP) said the law would have “dire consequences” for endangered salmon and the people who depend on them, since most rivers are already endangered by low streamflows.
CELP wants required metering of water use and genuine mitigations of water use. The group criticized the law for allowing pilot projects that would compensate for water use with habitat improvements instead of direct protection of streamflows.
Adding up water use
While the new law shifts some burdens, it leaves the county trying to figure out how to measure actual water use. The county has been debiting 710 gallons per day for all new wells for indoor use and a lawn, based on a 2011 study. But county officials are still trying to figure out how much of that water is completely consumed, and how much percolates back into the ground through septic systems, said Hover.
Even so, 710 gallons is significantly less than the 5,000 gallons a day state law allows people to draw from exempt wells. People can also use an unlimited amount of water from these wells for livestock.
A greater challenge for the county is calculating how much water has been used since the Methow watershed was established in 1976 with a reserve of 2 cubic feet per second (cfs) for each of seven reaches. One cfs is a flow of about seven-and-a-half gallons per second.
The 1976 Methow rule is one of the state’s 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 Dave Christensen, water resources program development section manager for Ecology.
“WRIA [Water Resource Inventory Area] 48 is a different animal in the whole state,” said Hover, using the state’s classification for the Methow watershed. “It’s such a different rule, with such large reserves and so much science.” It’s also the only watershed where the reserve was put in at the same time as the instream flow rule, meaning that water for domestic use comes before water for fish, said Hover.
The rule that created the reserve in the Methow was developed in conjunction with the possibility of a destination ski resort at Early Winters. The 2011 water study found that there is enough water for 4,500 homes in five of the reaches, but that two — the Upper Methow and Lower Methow — could end up with 24,000 homes without adequate water if a house were built on every existing parcel.
The county also has to decide when to debit the new water use from the total reserve. Some counties are subtracting water as soon as a well is drilled. Okanogan County has been debiting new water use when a building permit is issued, but some counties wait until there’s a certificate of occupancy.
But Okanogan County didn’t start debiting wells until last year. The county asked Ecology for a grant to help with water metering and software to fill in the blanks back to 1976, said Hover.
Although they’re no longer performing the in-depth water review, Okanogan County planners are still evaluating all proposed water uses, particularly if a well is near a tributary closed to new withdrawals. If it’s clear that the well won’t draw from a closed basin, the county will simply debit the water use from the total reserve. But if there’s a chance that the water would come from a closed basin, the application will go to Ecology for further review, said Hover.
The new state law sets a $500 fee for anyone wanting to drill a new well in certain watersheds — including the Okanogan — to cover costs of researching and tracking water availability. Ecology will get $350 and the county will get $150. There is no fee for people wanting to drill a new well in the Methow watershed. The county’s fee of $250 for a water-availability review will no longer be necessary.
The law also invests $300 million over the next 15 years in projects intended to help fish and streamflows.