Seeks clarity on issuing new building permits
By Marcy Stamper
Okanogan County has filed a lawsuit against the state Department of Ecology, contending the agency’s interpretation of water laws prevents the county from exercising its authority to approve building permits and subdivisions, creating uncertainty and risk for the county and its residents.
The Okanogan County commissioners approved the legal action on Wednesday (Feb. 10), with commissioners Andy Hover and Jim DeTro in favor and Commissioner Chris Branch voting “no.” The complaint was filed in Okanogan County Superior Court on Friday (Feb. 12).
The county is seeking a declaratory judgment on two issues:
• Whether the county’s policy of allowing property owners to divide a lot with an existing house and well, to create one new lot for one additional house supplied by its own well — what the complaint terms the “Two-lot Subdivision Exception” — is lawful.
• Whether the hundreds of lots in the county created after a 2002 Washington Supreme Court ruling are each entitled to their own well to supply a house.
At issue is the definition of single-domestic versus group-domestic wells. State water law allows people to supply a single house with a well without obtaining a special water right. The wells are called “permit-exempt,” since they don’t need a water right.
The lawsuit was filed just weeks after the county received a legal opinion from Assistant Attorney General Alan Reichman in response to a request from the county for an interpretation of the rule that governs water use in the Methow watershed. Reichman, who handles matters for Ecology, said that splitting off a new lot from one with an existing house and well would require a group-domestic well system, not single-domestic.
“Ecology’s letter casts a cloud of uncertainty over the County’s exercise of its land use authority and the outcome of applications for residential development within the County. Application of Ecology’s interpretations will cause substantial and imminent harm to Okanogan County residents and the County itself,” according to the legal complaint, which was prepared by Van Ness Feldman, the legal firm that handles water issues for the county, and Okanogan County Chief Civil Deputy Prosecuting Attorney David Gecas.
The lawsuit stresses the urgent need for a resolution. “Hundreds of applicants with vested interests stand to lose considerable investments and resources if the County denies building permit applications that rely on permit exempt wells when prior subdivision applications that rely on those same wells were approved,” according to the complaint.
“The county is faced with a decision to either comply with Ecology’s interpretation and face potential legal challenges from applicants or apply its own interpretation of the applicable law and risk future legal challenges from Ecology and other interested parties. The uncertainty will likely lead to piecemeal litigation through appeals of individual land use decisions,” and the county and its residents will suffer, they said in the complaint.
The county believes that allowing just one additional house to be built on one new lot conforms to the law. “The Two-lot Subdivision Exception is narrowly tailored to allow only those subdivisions that would create one new withdrawal that is properly characterized as ‘single domestic,’” according to the lawsuit.
The 1976 Methow Rule sets aside a certain amount of water 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).
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.
The 2002 Supreme Court ruling in the Campbell & Gwinn case found that a proposed subdivision with 20 homes constituted group use and required a water right. Ecology asserts that any parcel created through subdivisions after that ruling would result in group water use by splitting up the right to one exempt well among multiple wells.
That interpretation eliminates the ability for owners of these lots in the Methow to build, unless they can secure a water source other than drilling a well on their property. In the past two decades, Okanogan County has been approving building permits and water adequacy for hundreds of these lots in the Methow, according to the lawsuit. The county contends that these property owners’ right to build is vested, because they relied on decisions by the county that were never challenged.
Need for certainty
In last week’s discussion of the potential legal action, all three commissioners agreed that certainty is essential — for the county to be able to make land-use decisions and for people who own or buy property. “I don’t believe Okanogan County was out there doing things willy-nilly, without the backing of the Department of Ecology,” Hover said.
The situation has grown more complex as recent decisions have turned water law on its head, Branch said. In voting against the lawsuit, Branch said he was primarily concerned with the cost and duration of litigation — particularly since the issue affects only the Methow watershed.
But Hover noted that there are also financial risks to not taking action, such as defending the county against litigation by property owners who’ve invested in property and infrastructure.
DeTro agreed that the commissioners need to think about the net benefit to the entire county. Property values in one area affect taxes for all residents, Hover said.
In an interview after the meeting, Hover said he doesn’t expect other counties to join the litigation, because the issues are so geographically specific.
The commissioners also proposed a review and update of the Methow watershed plan, which could change priorities for types of development and water use. They would most likely assemble a group of stakeholders and interested parties to conduct the review, Hover said.
The lawsuit notes that, “out of an abundance of caution,” the commissioners have imposed numerous interim controls on development and subdivisions in the past two years in response to water legislation and court rulings.
Recent ordinances imposed a moratorium on all subdivisions in the Methow watershed where a well would draw from an aquifer connected to the Methow River. Until last week, the ordinance included the two-lot subdivision exception, but those land divisions have also been put on hold, pending clarification.
The only remaining exceptions are for agricultural lots and parcels of 20 acres or more created through a land segregation that’s exempt from the state’s subdivision law.
The county also changed its approach to comply with a separate determination by Ecology — not at issue in this lawsuit — that no new houses can be built in 30 basins in the Methow unless the developers can show they won’t draw water from the 30 streams and lakes that Ecology says are already maxed out. Ecology issued that determination after saying that new science raised questions about the approach the department been relying on for 30 years to protect those waterways.
Last week, the county placed a moratorium on building permits on lots created since 2002 to avoid entangling property owners and the county in litigation.