Ecology’s new approach limits water options
By Marcy Stamper
For almost three decades, people building a house in one of the 30 closed basins in the Methow Valley have been able to drill a well into bedrock to assure that they weren’t drawing water from a stream already maxed out for water withdrawals.
But now the state Department of Ecology says its scientists can’t guarantee that these wells aren’t sucking water from the restricted water body. The decision effectively halts all new development in these areas.
Ecology said its decision is based on changes in case law and new scientific understanding. “The general overarching decision is that we no longer are certain these wells don’t impact these tributaries,” said Joye Redfield-Wilder, communications manager for Ecology’s central regional office. “Under the current legal landscape, certainty is required.”
Fourteen streams and 16 lakes, including Wolf Creek, Bear Creek and Beaver Creek, are listed as closed in the 1976 “Methow rule” setting out water allocations for the Methow watershed. Most of the lakes are high in the mountains, but Patterson, Pearrygin and Davis lakes are on the list.
“This change in approach could result in water not being available for domestic wells unless options are identified,” said Ecology in a statement about the new approach. The agency has yet to identify specific options.
The reevaluation — and efforts to come up with alternatives — is ongoing. Ecology is talking to affected parties to see if there are alternative ways to provide drinking water and still comply with public health and building codes, said Redfield-Wilder.
The decision will affect not only new wells, but also plans to build on a lot that already has a bedrock well — if the well has never been used (that is, “put to beneficial use”). That restriction would apply even if the property owner has a letter from Ecology saying the well isn’t in hydraulic continuity with a closed stream, said Okanogan County Planning Director Perry Huston in a briefing for the county commissioners about Ecology’s decision last Monday (Oct. 29).
Huston said he had just received a call from Ecology the week before explaining the new approach. Ecology has said it will stand by its approval of bedrock wells already being used for existing homes, said Huston. The county still doesn’t have details of the new policy in writing, he said.
In the reevaluation of these small watersheds, Ecology has redrawn maps for three of them, generally reducing the closed areas. In the areas outside the closed basins, a well would be acceptable because it wouldn’t be deemed to be drawing from the over-allocated stream. About 10 wells are drilled each year in the affected areas, according to Ecology.
These tributaries typically run downhill toward the Methow River. Ecology says it’s clear that wells closer to the Methow River are drawing from the main river aquifer, not the smaller creek, and would therefore be acceptable.
Okanogan County officials are exploring ways to allow people to build in these areas. That includes strategies to offset any new withdrawals through mitigation or water storage. But Trevor Hutton, water resources manager for Ecology’s central region, said mitigation would be difficult. “These tributaries are already closed. There are no existing water rights to repurpose, so mitigation is going to be very tricky,” he said.
The county is also studying options such as cisterns or holding tank. If these were approved as a potable water source, water would be delivered to these tanks in trucks — they would not be used to catch rainwater, said Dave Hilton, environmental health director for Okanogan County.
Among the issues Public Health is still researching is how to size a tank so that it doesn’t run out or sit and collect residue, said Hilton. Currently, the county requires a minimum of 360 gallons a day for a three-bedroom house.
“We’ve never said a holding tank would be dependable and potable, mainly because of weather,” because trucks might not be able to reach the tanks in winter, said Hilton. It’s also not clear where the water would come from.
But the county is open to finding solutions. “If you own 20 acres in a closed basin and can’t drill a well, it’s kind of a taking,” said Hilton.
Okanogan County Commissioner Andy Hover wants to meet with Ecology to figure out the next steps. He pointed to historic documents refer to “consumptive” use, suggesting there might be options for mitigation or water storage to offset new withdrawals. Hover said the document also mentions exemptions when there’s no other practical water supply.
In reviewing these closed streams and lakes, Ecology is revisiting groundwater reports it issued in 1991. So far, Ecology has reassessed Beaver, Thompson and Wolf creeks, but may not look at all the closed streams, according to Redfield-Wilder.
One reason Ecology took another look at these basins is because of the uncertainty created by the 2016 state Supreme Court decision known as Hirst, which requires that people prove they have adequate water — and the right to use it — before they can use a well for a residence. These wells are called “permit-exempt,” a special category created in state law for domestic use. Exempt wells allow up to 5,000 gallons per day for household use, a garden and livestock without obtaining a special permit or water right from Ecology.
With recent court decisions and new laws, both Okanogan County and the Yakama Nation have asked Ecology to look more carefully at the bedrock approach and whether it protects limited water resources.
The Methow Rule allows a prospective developer to appeal Ecology’s decision and present evidence to show the well isn’t drawing from a closed stream — and that hasn’t changed, said Redfield-Wilder. “But as a policy decision, we need to be up-front with people so landowners aren’t put into lawsuits. And the county needs to know that we don’t have that certainty — so, under the rule, we can’t approve wells,” she said.
Whether a well in one of these 30 basins is drawing from a closed stream is only one issue Ecology and the county have to address. “There is also the availability issue. The county has a responsibility to assure that there is physical and legal water available,” said Ecology’s Hutton.
After considerable confusion over Hirst, the state Legislature passed the Streamflow Restoration act early this year, which sets rules to ensure there is water for new uses. Depending on the watershed, the act sets limits on daily water withdrawals.
No building on hold — yet
Real estate agents have already been discussing the potential ramifications of the new policy.
Ecology’s new approach doesn’t affect any building projects currently in the works, said Huston. Applications already in the system are considered vested, and there are none pending in the affected areas, he said.
Winter is typically a slow time, but until the situation is clarified, the Planning Department will not accept any new applications for houses in the restricted basins, Huston said.
The Okanogan County Board of Health will review options for alternative water systems at its meeting on Tuesday (Nov. 13) at 1:30 p.m.