Legal Framework: Exempt Wells and Water Allocation in the Methow watershed
- The Methow Instream Flow Rule (“The Methow Rule”) reserves 2.0 cubic feet per second for “Single Domestic and Stock Use” in each of seven reaches of the Methow River.
- Wells using the reserves are permit-exempt – meaning they do not require water right permits.
- These wells also have priority over the river’s instream flows. This means that homes with a well using the reserve do not have to stop drawing from their well if required instream flows are not being met, while other users can be cut off, or “interrupted.“ This is critically important because instream flows are frequently not met during the summer and winter in the Methow.
- New wells that do not qualify for the reserve can be interrupted when instream flows are not met. They can also be interrupted by senior water rights holders if their rights are affected.
- The WA Department of Health does not permit the building of homes with an interruptible water supply.
- The Lower Reach of the Methow River’s 2cfs reserve is already overallocated. A 2011 Aspect Consulting memo to the Methow Watershed Council finds that even with no further subdivision, and limiting use for each home to 710 gallons per day, there is inadequate water in the reserve to supply the 1,092 existing undeveloped lots in the Lower Methow Reach.
- According to the same memo there would be at least 24,000 residences in the Lower Reach without water at full buildout under current zoning (1-acre lots).
What is “Single Domestic” Use?
- Because the Methow Rule allows “Single Domestic” wells priority access to the 2cfs reserves, it prevents these wells from being interrupted. What does “Single Domestic” mean?
- The Washington State Supreme Court concluded in the Campbell & Gwinn decision in 2002 that single domestic use is use “by a single home,” and not use by several homes, a multiunit residence, or a subdivision. The latter is a “group use.”
- The Department of Ecology’s report on the Methow Instream Flow Rule also defines “single domestic use” as “[w]ater used by a single household including up to one-half an acre lawn or garden irrigation.”
The Bottom Line
- State law requires a landowner to have a legal source of water in order to build a home on their lot. Because of the “Methow Rule,” the new home cannot piggyback on another home’s “single domestic” water right because it’s not truly a single domestic use. If that were the case, it would make the distinction between “single use” and “group use” meaningless. For example, an owner of 80 acres could end up with four 20-acre lots, with four homes, simply by first dividing into two 40-acre lots, each of which could then be divided into two 20-acre lots – all using the same “single domestic” water right!
- Consequently, we believe that the proposed subdivisions are not single domestic uses as defined in the Ecology Report , but are instead group uses as defined in case law. When one home using the reserve on one lot becomes two homes using the reserve on two lots, that is no longer “single domestic use.”
- We do not believe that the lots created by subdivision – resulting in a “group use” –are legally entitled to use the 2 cfs reserve, and therefore cannot have homes built unless the developer can find an alternative legal source of water.
- The county’s regulations, including the Comprehensive Plan, the Zoning Code, Subdivision Ordinance and permitting procedures, need to account for the requirement in state law that a county may not issue a building permit unless the owner has legal source of water.
Kris G. Kauffman, P.E. James R. Bucknell, River Basin Program Series, No. 4 Water Resources Management Program Methow River Basin (Water Resources Inventory Area No. 48) p. 23 (State of Washington, Department of Ecology Policy Development Section Water Resources Management Division Reprinted Nov. 1977) last accessed on March 11, 2020 at: https://fortress.wa.gov/ecy/publications/SummaryPages/7611005.html. See also p. 10 of the report for the same definition.