By Marcy Stamper
A moratorium on building permits for lots created since March 2002 in the Methow Valley will remain in effect through July 10 while the Okanogan County commissioners attempt to resolve legal issues that could allow these property owners to use a well to supply household water.
The commissioners voted to keep the six-month moratorium, ordinance 2021-3, in place after receiving public comment on the ban at a public hearing on Monday (April 5). Eight people testified at the hearing, and another seven submitted written comments.
Five of the people testifying described similar circumstances. They all own property that already has a well and often other infrastructure like pipes or a cistern. But, despite their financial investment — and approvals from the county and the state — they can’t get a permit to build.
Most of those who testified said they understood and supported the county’s overall ban on new development relying on a well because of the need to protect the valley’s water supply.
But they described thwarted plans and financial hardship. One woman said she “spent my life savings” on a 5-acre parcel with a well and irrigation rights only to be told she can’t build on it. She suggested metering water to avoid costly litigation.
After checking with the county, a man purchased a lot with a well, a cistern, and water lines last August. Another said he has letters from the town and county saying the lot he bought last year, with a well, is buildable. The economic burden shouldn’t fall on the shoulders of people who bought property with due diligence, he said. “It would be kind of ruinous for us to lose the value of that land,” he said.
Other speakers urged the commissioners to include an explicit notice about requirements for a building permit and water adequacy when they approve other types of land divisions not covered by the state subdivision law, to protect people investing in the property.
These divisions, called exempt segregations (a division of land into four or fewer lots of at least 20 acres in size) and large-lot segregations (five or more lots of at least 20 acres), still require proof of water adequacy before building, Okanogan County Commissioner Chris Branch said in a discussion after the testimony. The county has continued to process these segregations since the moratorium went into effect.
The moratorium on building permits is one of several ordinances adopted by the commissioners since late 2019 that restrict development in the Methow watershed where the house would rely on a single-domestic well. The bans don’t apply in areas that draw from the Columbia River (as opposed to the Methow River). The commissioners imposed the bans to protect the county and the public from “economic uncertainty” and unnecessary legal appeals, according to the ordinance.
The moratorium on building permits on already existing lots came in response to a letter from an attorney for the state Department of Ecology, who said that an exempt well can’t serve as evidence of an adequate legal water supply on lots created since a March 2002 Washington Supreme Court decision.
The county disputes Ecology’s interpretation and filed a lawsuit in February to obtain a ruling as to whether these lots — there are hundreds in the county — are each entitled to their own well to supply a house. The lawsuit also seeks a ruling regarding 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.
The 2002 Supreme Court ruling 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.
The commissioners said they are attempting to resolve the issue through several means, including the lawsuit, zoning that recognizes water scarcity, and trying to account for the water actually used.
In a discussion after the testimony, the commissioners said it would be too risky to amend or drop the moratorium before the lawsuit against Ecology is resolved. Even though these parcels have gone through the application process and Ecology approved the wells, there’s no way for the county to provide relief now, Okanogan County Commissioner Andy Hover said.
Hover advised waiting six months, hoping for a conclusion in the case against Ecology. County Commissioner Jim DeTro agreed. “If we don’t stay the course, there will be confusion and people will be hurt,” DeTro said.
“We inherited a situation with a lot of uncertainty,” Branch said. Local governments had expectations that Ecology was managing the state’s water. “It’s more complicated than people understand,” he said.
Branch agreed that it could be important to have disclosure regarding water for people applying for exempt and large-lot segregations. The commissioners committed to getting an updated accounting of how much water is being used by existing wells and how much of the water set aside for the Methow watershed is still left.
Ecology denies all claims in lawsuit
The state Department of Ecology filed a response on March 8 to the lawsuit filed by Okanogan County over Ecology’s interpretation of water laws, denying almost all allegations of fact and legal arguments made by the county.
In the lawsuit, filed in Okanogan County Superior Court in February, Okanogan 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, 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.
The lawsuit was a response to a letter to the county from Alan Reichman, the state attorney general who handles matters for Ecology, that interprets water law. Reichman’s letter is not an agency action subject to legal review and the court doesn’t have jurisdiction, Ecology said in its court filing.
The county failed to make a claim upon which relief may be granted, failed to exhaust administrative remedies, and doesn’t have standing to bring the case, Ecology said.