Some property owners say retroactive move is unjust
The notice that Okanogan County is holding a public hearing on “Interim Controls in Water Resource Inventory Area 48” was doubtless dismissed by most people as an obscure technical matter without real-world ramifications.
But the interim-control ordinance leaves some 200 property owners in the Methow Valley in limbo by setting a moratorium on building permits. The moratorium covers lots created through subdivision after March 28, 2002, when the Washington Supreme Court ruled that a developer couldn’t use single-domestic wells to provide water for 20 lots, finding that state law required a group water system.
The commissioners adopted the moratorium in January. Water Resource Inventory Area 48 is the Methow watershed.
Twisp resident Heidi Dunn feels trapped by the county’s efforts to follow an interpretation of the Supreme Court ruling by the state attorney general. Dunn purchased a 5-acre parcel on the Twisp-Winthrop East County Road in 2019. A Methow native, Dunn was acutely aware of water issues and looked for property that already had a domestic well and irrigation rights.
Since buying the property, Dunn has invested thousands of dollars in other infrastructure, including a septic system, driveway and power hook-up. She obtained approval from Okanogan County for water adequacy and for her site analysis showing the location of her house, septic system and other infrastructure. The site analysis was good through March 2021.
The county’s Building Department assured Dunn she’d have until the end of 2021 to apply for a building permit. But since she hadn’t applied for the permit before the commissioners imposed the moratorium, her life savings are tied up in land that she can’t develop, she said.
“It’s a little late to renege on rights already given to those property owners,” she said. “These are people who’ve invested in infrastructure — wells, septic, power. It’s truly unjust. It’s just putting a lot of lives in precarious economic situations.”
Legal rulings and interpretations
Last year, the county asked the state Department of Ecology for its interpretation of single-domestic wells, which allow withdrawal of 5,000 gallons of water for a house, livestock and a half-acre garden.
In the opinion, state Assistant Attorney General Alan Reichman said that the 2002 Supreme Court decision, called Campbell & Gwinn, means that supplying any homes in subdivisions with wells constitutes group water use. He confirmed that existing houses aren’t affected by his interpretation, but said the court’s ruling barred new homes that would rely on a well.
Dunn has done in-depth research on the situation, including reading Campbell & Gwinn. She maintains that that situation was different, since the developer wanted to put a well on each of 20 parcels for both indoor use and irrigation.
Dunn said she supports limits on development to protect water resources, but insists that applying them in her case is counter-productive. Since she has irrigation rights, she wouldn’t be using the well to water her lawn or garden. The policy runs counter to a desire to preserve agriculture in the valley, she said. She’s already planted fruit trees and cover crops.
Dunn wants to see a practical solution that will let people build while safeguarding water supplies. She suggested the county require a water meter on wells in all lots in a subdivision to ensure that total withdrawal doesn’t exceed 5,000 gallons a day.
The moratorium was intended to give the county time to research how much water is already used by residences and how much is left for development. The county also intended to look at court rulings and agency interpretations about subdivisions and single versus group wells.
The commissioners have imposed several moratoriums in response to warnings that the county risks lawsuits from people concerned about physical and legal water availability as well as from property owners who face uncertainty about whether they would have water to build a house.
One moratorium bars the creation of new lots that would draw on the Methow River for a well. Ecology banned the use of wells in basins supplied by small streams already considered over-appropriated.
The county sued Ecology in February over two issues — the ban on development of lots created after 2002, and an exception the county wanted to grant that would have allowed people with an existing house and well to create one more lot with its own well for a new house (the “two-lot subdivision exception”).
Okanogan County Superior Court Judge Henry Rawson ruled in August that the two-lot exception violated the law. But Rawson didn’t address the dispute over lots created after 2002. The county has asked Rawson to reconsider and to clarify his decision and is awaiting a ruling.
“Without resolution [of the dispute over lots created after 2002], 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,” Okanogan County attorney Jenna Mandell-Rice wrote in the request to Rawson.
Hearing on building-permit ban
The public hearing on the interim controls is Monday (Oct. 11) at 1:30 p.m. The hearing will be held over Zoom. The link is on the Planning Department website at https://www.okanogancounty.org/government/planning/index.php under “Notices.”
People can also comment in advance by emailing Planning Director Pete Palmer at spalmer@co.okanogan.wa.us. Emailed comments are due on Oct. 10.
A copy of Ordinance 2021-8 can be accessed through the Planning Department website (see the link in the legal notice). For more information, call Palmer at (509) 422-7218.
