Dispute centers over splitting parcels
The seemingly complex question of who can use a well for water for a new house is really just a matter of basic grammar or math, according to lawyers for Okanogan County and the state Department of Ecology.
To Okanogan County attorney Jenna Mandell-Rice, the key distinction is between “subdivision” as a noun (a development with many lots) and the “act of subdividing” as a verb.
To Alan Reichman with the state Attorney General’s office, who argued for Ecology, the case boils down to elementary arithmetic. When Okanogan County allows a property owner to divide a lot with an existing house and well to create one new lot for an additional house with its own well, does 1 + 1 = 1, as the county says, or does it add up to 2?
The lawyers made their arguments to Okanogan County Superior Court Judge Henry Rawson on Tuesday, July 20, in a lawsuit filed by the county against Ecology asserting that the county’s “Two-lot Subdivision Exception” is lawful. The exception allows a property owner to divide a lot with an existing house to create one new lot for one additional house with its own well.
Ecology maintains that splitting off one parcel to build a new house with its own well turns the original water use into group use instead of single-domestic use, which isn’t allowed. Adding a second house results in two withdrawals from the same reservoir and puts instream flows for rivers and fish and other water users at risk, Reichman said.
In the county’s view, the case isn’t about how much water someone withdraws, but who can rely on the water reserved for single-domestic use by the 1976 Methow Rule, which governs the Methow watershed. Nothing in the rule supports Ecology’s contention that every division of land is necessarily group use, Mandell-Rice said. Moreover, Ecology has no authority over the county’s land-use decisions, she said.
In the past two decades, Okanogan County has approved building permits and water adequacy for hundreds of lots in the Methow created since the 2002 state Supreme Court Campbell & Gwinn decision, according to the county’s legal documents. The county contends that these property owners’ right to build is vested, since no one challenged the county’s approvals.
Rawson said the case appeared fairly straightforward. It hinges on the definition of a subdivision and on what constitutes group-domestic water use, he said.
Washington law provides an exemption for a property owner to use a well for up to 5,000 gallons per day for a single house without applying for a water right. Although the lawyers didn’t address how much of the 5,000 gallons each house would use, Rawson noted that if one house has one inhabitant and another has 10, it more than doubles the use.
The Okanogan County commissioners have instituted several moratoriums on new development in the Methow in the past two years to comply with recent court rulings and water law. But the county maintains that the Two-lot Subdivision Exception is a special case.
In the Campbell & Gwinn case, the Supreme Court ruled 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.
Okanogan County filed the lawsuit against Ecology in February, following a legal opinion from Reichman in response to the county’s request for an interpretation of the Methow Rule. Reichman said that splitting off a new lot from one with an existing house and well would require a group-domestic well and doesn’t qualify for the single-domestic exemption.
The 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). Municipal and group-domestic uses are further down on the list.
Rawson: decision will take time
Because of the extensive briefing in the case, Rawson said he’d need time to reach a decision. He noted that there are water-conservation practices now that didn’t exist when these laws were drafted.
Rawson also dangled a potential resolution, saying he’d made a note to himself wondering if the county and Ecology have ever sat down to discuss the issue.
Rawson deferred a decision on whether to grant a request from Methow Valley resident Lee Bernheisel to intervene in the case. Bernheisel contends that the lawsuit should be heard first by the state’s Pollution Control Hearings Board.