Water availability checklists were unavailable to public
Okanogan County has been using a water-adequacy checklist to review applications from property owners in the Methow Valley who want to use water from a well to supply a residence, but the county’s criteria aren’t available to the public. That violates the state’s Public Records Act, according to a lawsuit filed in Okanogan County Superior Court in May by the Methow Valley Citizens Council (MVCC).
The county started using what MVCC called “the mystery checklist” in February 2022.
MVCC repeatedly requested copies of the checklist last year, but was told that the checklist and any decisions about water use were covered by attorney-client privilege and therefore not subject to the records act, according to the lawsuit.
MVCC asked to see the documents after Okanogan County Planning Director Pete Palmer briefed the county commissioners about use of the checklist in May 2022.
Palmer told the commissioners that the county was making good progress using the water-adequacy checklist and had reviewed 58 permits as of May 24, 2022. All the projects were at the building stage, she said. Some of the applications required that the Planning Department devise a way to evaluate the use of water for swimming pools because of “a big uptick” in pools being installed in the Methow, she told the commissioners.
The following week, Palmer told the commissioners the process was becoming more streamlined and that most of the kinks had been worked out. They had reviewed 71 permits for water use, she said.
It is unknown how many applications have been reviewed using the checklist in the past year, MVCC said.
Attorney Van Ness Feldman has been assisting the Planning Department with land-use matters, which includes use of the water checklist.
In its reply to MVCC’s complaint, Okanogan County denied all the allegations but conceded some basic facts. “The County admits the ‘Water Quality Checklist’ is part of a privileged legal memorandum the county has used to inform its review of water adequacy for building permit applications,” according to the reply, filed in June by Van Ness Feldman.
‘Attorney/client privilege’
MVCC wanted to review the criteria used in the checklist and to have an opportunity to comment on the rationale, MVCC Program Director Lorah Super told the Methow Valley News.
“The county is using a public process, but keeping the decision-making process secret under the veil of attorney/client privilege,” Super said.
Last September and October, four months after MVCC requested copies of the checklist, the county provided heavily redacted copies of 49 checklists with large sections blacked out, according to the lawsuit, filed for MVCC by attorney Paul Lawrence with the Pacifica Law Group.
Although each application was stamped “A/C Privileged & Confidential,” the county didn’t provide a basis for the redactions. Twenty-two of the checklists had no identifying parcel information or name, and seven were duplicates. None of the checklists indicated whether the county had approved or denied the request for water use, according to the lawsuit.
The Public Records Act requires a detailed log explaining why certain materials were deemed exempt from disclosure, according to the suit.
After receiving the redacted documents, MVCC tried to get the county’s attorneys to provide public access, but when the county insisted on keeping the decision-making process behind closed doors, “MVCC made the difficult decision to take legal action,” according to an MVCC press release about the lawsuit.
In a sampling of the redacted checklists provided to the Methow Valley News by MVCC, the questions are still legible, but the two ‘answer’ columns (with headings of ‘Yes’ and ‘No’) are mostly blacked out. Occasionally there is some readable text, such as “Go to next question” or “The order does not apply.”
Questions cover topics such as whether the lot is in a closed basin, if the applicant plans to use a permit-exempt well, and if there’s evidence of a vested right to develop the property. Some of the checklists include hand-written notes about when a well was drilled or people’s names, but it’s not clear what the names represent.
Important information
Water availability is governed by state and county court rulings and legislation. There are several situations in the Methow Valley where water use for new homes is prohibited, or allowed only with special mitigations because water supply is limited. Some basins are closed to further water withdrawals. Lots created by subdivision after March 2002 can’t use a well for water unless the owners can show they have vested rights because the county had already approved building permits and water adequacy before a decision in Okanogan County Superior Court in 2021.
Information about how the county makes decisions on water adequacy is important to people considering building a house, those thinking about purchasing land, and to real estate agents and appraisers, who need to know whether a lot can be developed, Super said. It’s information that must be accessible to any member of the public who’s interested, she said.
“In a time of water scarcity and drought, the County needs to be more transparent on how it plans to interpret and apply water policy and spend the precious water that is held in the public trust for the benefit of not just developers and landowners, but for our rivers, fish, wildlife, and for future generations to come,” MVCC said in the press release.
MVCC’s complaint asks the court to require the county to provided unredacted copies of the checklist. It also seeks penalties up to $100 per day for every record unlawfully withheld from MVCC.
Okanogan County requested that the case be heard before another judge because the county believed it couldn’t have a fair trial before Okanogan County Superior Court Judge Robert Grim.
After that, MVCC asked that the case be heard in another court because they believe it wouldn’t get a fair trial before Okanogan County Superior Court Judge Henry Rawson.
An alternate venue hasn’t been announced.
Law firm handling more county planning
Okanogan County is currently in negotiations with Van Ness Feldman to assist with the complex requirements and approval process for planned developments. Okanogan County Planning Director Pete Palmer told the commissioners this June that she had reached out to six consultants to see if any of them would be interested in handling planned developments, and Van Ness Feldman was the only one that responded.
Van Ness Feldman would handle the entire planned development process for the county, Palmer said. It wasn’t clear if the firm would also review proposals for environmental impacts, or if Palmer would retain that role.
The commissioners directed Palmer to draft a proposal and contract with Van Ness for their review.
