The commissioners hope a legal opinion can inform planning for how water is used in the Methow watershed.
The moratorium on new subdivisions in the Methow watershed will stay in place at least through July so that the Okanogan County commissioners can get an opinion from the state’s attorney general about how water law applies to residential use.
Since the commissioners imposed the moratorium in December, they’ve received 100 pages of comments from more than 60 people with a “wide variety” of suggestions, County Commissioner Andy Hover said last week.
Because water law is so complex, some commenters suggested a legal analysis of what the law — and recent court rulings — mean for the 1976 Methow Rule. The rule sets aside a certain amount of water for use in seven reaches in the Methow and establishes a priority of uses for that water, with individual houses (single-domestic) at the top of the list, even before water for fish in rivers (instream flows).
The commissioners and the county’s chief civil deputy prosecuting attorney are working on a question to submit to Attorney General Bob Ferguson in a couple of weeks, Hover said. “We thought, ‘If we get an opinion, everyone can look at it,’” Hover said.
In its current form, the moratorium stops the creation of most new building lots. Anyone who can show another water source other than a standard well — either a water right or proof they’re trucking water from another location — could qualify for a building permit, Hover said.
The ban doesn’t affect existing parcels, even if they’re undeveloped, but some people think the moratorium should be expanded to include these lots.
Legal backing?
The commissioners have already obtained several legal opinions — in fact, advice from county attorneys and an outside law firm specializing in water law prompted the commissioners to impose the moratorium in the first place.
They hope an opinion from the attorney general will provide more pertinent analysis of how century-old state water law and recent court rulings affect the Methow Rule. Even interpretations by the state Department of Ecology, which manages water resources in the state, are not always consistent, Hover said.
Trying to sort this out is difficult, Hover said. “How do you follow the law if the court’s opinion doesn’t reference the law you’re trying to follow?” he said. “There are other types of planning we can’t do because of the way the rule is written.”
From the start, Okanogan County Commissioner Chris Branch called the situation “a conundrum,” with the county facing potential litigation from people concerned about illegal water use and from property owners who can’t get a building permit without proof of legal water.
An analysis of water law is crucial because the commissioners and water planners have been exploring the idea of revising the Methow Rule. But some fear that any tweaks to the rule could jeopardize the generous amount of water set aside for single-residential use in the Methow.
The attorney general provides opinions on questions of law for public officials. “While these formal legal opinions are not binding in any way, they have historically been given ‘great respect’ and ‘great weight’ by the courts,” according to the attorney general’s office.
What does the law say?
Among the questions the commissioners have for the attorney general:
• Because century-old water law says “first in time, first in right” (generally interpreted to mean that whoever uses water first retains priority), does that mean that the Methow Rule has enshrined the use of water for single-domestic wells for 44 years? “Can you even change it?” County Commissioner Andy Hover asked.
• How does the Methow Rule pertain to the state’s Growth Management Act (GMA)? The GMA directs counties to preserve open space and rural character by clustering development, but the Methow Rule puts water use for a group of houses at the bottom of the list, Hover said.
• What is the interplay between a 2002 state Supreme Court ruling called Campbell & Gwinn and the Methow Rule? In Campbell & Gwinn, the court said single domestic use is use “by a single home,” not by a subdivision sharing a well, Hover said. Trying to reconcile the two is difficult because Campbell & Gwinn talks about an amount of water and a public-water supply, whereas the Methow Rule sets a reserve for a type of water (single-domestic use).
Public input
While the commissioners closed public comment on the moratorium, they have not closed the public hearing, meaning they can continue to deliberate on the matter.
Under state law, an interim zoning control can be in effect for up to six months, although that can be extended in six-month increments if the commissioners produce a work plan for applicable studies. Each extension requires a public hearing.
The commissioners hope to have the attorney general’s opinion for their review on Monday, July 27. The commissioners have continued deliberations to Tuesday, July 28 at 2 p.m., when they expect to keep the moratorium in place, revise it, or rescind it.
They are not taking public comment on the moratorium ordinance, but they are accepting suggestions for the question to the attorney general. Contact Hover at (509) 422-7102 or andy.hover@co.okanogan.wa.us.
