Okanogan County Superior Court Judge Henry Rawson presides over another case earlier this summer.
Okanogan County’s policy that allows people with an existing house to create a new lot for one more house with its own well is unlawful, Okanogan County Superior Court Judge Henry Rawson said in a brief ruling on Aug. 3.
Rawson granted summary judgment in the case to the state Department of Ecology, meaning he agreed that no facts are in dispute. He found that what the county calls the “Two-lot Subdivision Exception” violates the Methow River Basin Instream Flow Rule, which sets aside a certain amount of water in the Methow watershed and establishes a priority of uses. Single-domestic use is at the top of the list.
Ecology argued 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. The second house would result in two withdrawals from the same reservoir, putting water for rivers, fish and other users at risk, state Attorney General’s Office Senior Counsel Alan Reichman said in oral arguments on July 20.
Okanogan County promptly filed a motion for reconsideration and/or clarification, saying Rawson had ruled on only one of two issues in the case. Rawson didn’t address the question of whether Okanogan County can allow development of parcels created by subdivision after a 2002 state Supreme Court ruling, Okanogan County attorney Jenna Mandell-Rice said in the Aug. 13 motion.
“Without resolution of Issue 2, the County remains in the untenable position of either applying Ecology’s interpretation and facing potential legal challenges from applicants, or respecting the finality of unchallenged prior land use decisions and the vested rights of land use applicants and risking future legal challenges from Ecology and other interested parties,” Mandell-Rice wrote.
It wasn’t clear from Rawson’s decision whether he simply declined to rule on that question or hadn’t specified his rationale, she said. The county needs to know the rationale to implement the court’s order, Mandell-Rice said.
Without clarity, there are several possible interpretations, Mandell-Rice said. It could be that all parcels created after the Supreme Court ruling are considered group use, meaning they’re not eligible to use a well without a special water right. Or it could be that if the county denied building permits in these situations, it wouldn’t violate other laws that say withdrawing water is evidence of water adequacy, Mandell-Rice said.
Another possibility is that the county’s denial of building permits for these lots wouldn’t run counter to its approval of the original subdivision, nor violate the vested rights of these property owners, she said.
Rawson’s ruling on the two-lot subdivision exception also needs clarity, Mandell-Rice said. His order said that the exception creates an addition parcel that would constitute “single-domestic use” and would in itself be designated a “single-domestic use.”
Ecology argued that the new parcel would constitute group use, while the county said it was single-domestic, Mandell-Rice said. Without further clarification, Rawson’s ruling could imply that even single-domestic uses can’t rely on the reserve in the Methow Rule for single-domestic use, she said.
“A clear understanding of the Court’s legal conclusions with respect to Issue 2 [on lots created after 2002] is imperative for the County to implement the Court’s decision in its land use decisions going forward, should the County choose not to appeal,” Mandell-Rice said.
Rawson also denied a request from Methow Valley resident Lee Bernheisel to intervene in the case. Bernheisel contended that the lawsuit should be heard first by the state’s Pollution Control Hearings Board.
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). All other uses, including 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 says 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.
Building moratorium extended
Last week, the Okanogan County commissioners extended a moratorium on building permits on any lots created after the 2002 Campbell & Gwinn ruling that would rely on the Methow River for water. When they adopted the original ban in February, the commissioners said that they hoped the situation would be clarified by the county’s lawsuit against Ecology. The moratorium is in effect for another six months.
