Recent court cases say we have to safeguard water in rivers and streams for fish. The Okanogan County commissioners are banning subdivisions in the Methow watershed to study local water regulations.
Two-year moratorium to study water regs
The Okanogan County commissioners have set a two-year moratorium on virtually all new subdivisions of land in the Methow watershed to allow the county to study water regulations for the Methow Valley.
The county commissioners unanimously adopted an ordinance that designates a water-availability study area for the watershed on Wednesday (Dec. 18). They passed the ordinance as an interim control, which can be imposed as long as there’s a public hearing within 60 days. The commissioners have scheduled a hearing for Jan. 27, 2020.
The commissioners imposed the interim rules after threats of litigation and consultation with the county’s own lawyers and outside land-use and water law attorneys, Okanogan County Commissioner Andy Hover told the Methow Watershed Council at their monthly meeting on Dec. 19. County Commissioner Chris Branch was also on hand to explain the new policy.
“This is not something I wanted to sign,” Hover said. “We’re under constant threat of litigation for decisions the county could make about subdivisions and how the Methow Rule [which governs water use] is being interpreted. We listened to the lawyers and had to do it.”
The moratorium stops the creation of new building lots, with a few exceptions. Anyone who can show another water source — either a water right or proof they’re trucking water from another location — could qualify for a building permit, Hover said.
The new rule doesn’t affect existing parcels, even if they’re undeveloped and have no house. It allows someone with an existing residence to subdivide and add a second house. People can create new lots for farming or other purposes that don’t require potable water.
The watershed council and interested members of the public — many with decades of experience in water law — inundated the commissioners with questions and debated potential solutions to what Branch called a “conundrum.”
In addition to the risk of litigation from individuals or groups concerned about water, there’s also a risk of lawsuits from people who buy property to build a house but face uncertainty as commissioners try to keep up with changing water laws, Branch said.
The county halted subdivisions now “so we don’t get in deeper,” Branch said. He noted that people will be able to comment and the ordinance can be amended.
Complicated situation
The problem — which some at the meeting called a Catch-22 — stems from a complicated set of water rules and laws. The state has rules governing all watersheds. The Methow Rule is unique, both because it sets aside a particular amount of water and because it gives first priority to residential development for individual houses (“single-domestic use”).
That means these houses get water even before ensuring there’s water in rivers for fish. All other uses — municipal (Twisp and Winthrop) and group-domestic (a development with several houses) are further down on the list.
Washington allows people in rural areas to use up to 5,000 gallons a day for a house from what’s often called a “permit-exempt well” — permit-exempt because people don’t have to apply for a special water right.
But the Methow Rule, which dates from 1976, is affected by subsequent court cases and laws. In 2002, the state Supreme Court ruled in the Campbell & Gwinn case that single domestic use is use “by a single home,” not by several homes or a subdivision.
That means the developer can’t simply divvy up the 5,000 gallons among several houses, because that’s group use. “But the Methow Rule doesn’t put group use first,” Hover said.
Subsequent court rulings, like the 2016 “Hirst” decision, muddy the waters further. That ruling said that it’s not enough to have adequate water to support a household — the homeowner must also have a legal right to use that water. It’s up to the counties to ensure that all residential water use is legal.
There are differing opinions about whether the Methow Rule, water law and recent court cases allow houses to be built on the more than 2,700 existing undeveloped parcels in the Methow. Since people had an opportunity to appeal those subdivisions and the deadline has passed, the commissioners believe it’s too late to object to water use.
But an undated summary sent to the county by attorney Tim Trohimovich of Futurewise provided a different legal analysis. After the 2002 Campbell & Gwinn decision, it was no longer permissible to create new lots that rely on a permit-exempt well for single-domestic use, and the absence of an appeal isn’t enough, Trohimovich wrote. Hover said Futurewise has threatened litigation over the issue. Trohimovich couldn’t be reached by press time.
The county got a legal opinion saying Futurewise is probably right — that it’s not legal to use single-family domestic wells for subdivisions. “The county is reluctant to say they’re going to fight that in court,” Branch said.
“There is data, but there’s a debate about it — an intense debate, as I observe,” Branch said. “We need a rational conversation about what it’s telling us. I don’t want the courts to decide. The Legislature isn’t good at it, either.”
Branch wants a local solution that includes all groups interested in water. “I’m optimistic that we can resolve the issue,” he said. The Methow Watershed Foundation, a nonprofit that supports the watershed council, will research grant opportunities to do that.
The commissioners have scheduled a hearing on the interim rule in the Methow Valley on Jan. 27, 2020. The time and location haven’t been announced yet.
What will the county study?
Declaring a study area is really an opportunity to study ways of revising the Methow Rule to protect all water users — residential, commercial agricultural, fish and recreation, Okanogan County Commissioner Andy Hover said.
Not only did the rule set aside 14 cubic feet per second (cfs), almost 449 gallons per minute, of water for the Methow watershed, but it also allocated that water in equal amounts to seven reaches. But a lot has changed in the 43 years since the rule was adopted.
Hardly any of that water has been used in the Early Winters reach, where there are no developable parcels. Yet in the Lower Valley reach (from Twisp to Pateros), there are already so many lots that if houses were built on all of them, they’d run out of water.
Many water experts and county officials would like to reallocate water to where it’s needed. In addition to reallocating the water, they’ve proposed changing the priority for water uses.
But they want reassurance that, if they start tinkering with the rule, the Methow wouldn’t lose its precious water reserve. Figuring out how to do that is a main goal of the study during the moratorium, Hover said.
The commissioners have talked to the state Department of Ecology about the issue. To revise the rule, Ecology says the Yakama Nation and Colville Tribes have to be at the table and that any revision must ensure there’s more water in the rivers for fish, Hover said.
“We have enough water, but it’s not in the right position in the rule for us to use it,” Hover said. “We would never ask to change the amount of water. We want to use water in the reserve for different things — group domestic and fish.”
