What is the subdivision ordinance?
On December 18th, 2019, the Okanogan County commissioners unanimously adopted an ordinance that designates the Methow Watershed as a water-availability study area. The ordinance sets a two-year hold on virtually all new residential subdivisions of land to allow the county to study whether legal and physical water is available for potable water supplies in the Methow Valley. The ordinance leaves open a loophole for parcels with an existing residence to subdivide into one additional lot with a new legal single domestic water supply during the study period. Also, anyone who can show another water source — either a water right or proof they’re trucking water from another location — could qualify for a building permit. People can create new lots for farming or other purposes that don’t require potable water. The commissioners passed the ordinance as an interim control, which can be imposed if there is a public hearing within 60 days. A public hearing was held on Jan. 27, 2020 at the Winthrop Barn.
This ordinance expired in June 2020 and was replaced by Ordinance 2020-4, a prohibition with the same exception – and additional exceptions added. MVCC told the county it did not believe the exception for a two-lot subdivision was allowed under the state regulation. Two different landowners each applied for a two-lot subdivision south of Twisp, using the exception for a second lot. When the county issued preliminary approvals for the two proposed subdivisions in June, MVCC was required to appeal them or lose our right to be heard.
On July 6, MVCC sent a Notice of Appeal to Okanogan County, contesting the Planning Department’s preliminary approval of two subdivisions proposed for the “Lower Reach” of the Methow watershed. MVCC also filed complaints with the Department of Ecology for these subdivision applications.
To understand the legal framework underlying these appeals, click here.
What is at issue?
The Methow Valley News did a good job at summarizing the issue in an article dated December 25th, 2019:
The problem — which some at the meeting called a Catch-22 — stems from a complicated set of water rules and laws. The state has rules governing all watersheds. The Methow Rule is unique, both because it sets aside a particular amount of water and because it gives first priority to residential development for individual houses (“single-domestic use”).
That means these houses get water even before ensuring there’s water in rivers for fish. All other uses — municipal (Twisp and Winthrop) and group-domestic (a development with several houses) are further down on the list.
Washington allows people in rural areas to use up to 5,000 gallons a day for a house from what’s often called a “permit-exempt well” — permit-exempt because people don’t have to apply for a special water right.
But the Methow Rule, which dates from 1976, is affected by subsequent court cases and laws. In 2002, the state Supreme Court ruled in the Campbell & Gwinn case that single domestic use is use “by a single home,” not by several homes or a subdivision.
That means the developer can’t simply divvy up the 5,000 gallons among several houses, because that’s group use…
…Subsequent court rulings, like the 2016 “Hirst” decision, muddy the waters further. That ruling said that it’s not enough to have adequate water to support a household — the homeowner must also have a legal right to use that water. It’s up to the counties to ensure that all residential water use is legal.
What is Methow Valley Citizens Council’s involvement and position on this issue?
Methow Valley Citizen Council has been sounding alarm since 2016, after the Hirst decision, regarding the county’s vulnerability. We’ve been warning the county, that under the law, they’ve been granting subdivisions permits with no legal access to water – putting homeowners at risk.
The lack of clarity and agreement about what’s allowed by the Methow Rule and state law has created a confusing situation, in which property owners and potential buyers don’t know if the water they are using comes from a legal source. The county itself has been unable to provide the public with any details about the number of new homes or lots that could be created under the new ordinance, We believe allowing continued subdivision under these circumstances will exacerbate the problem, making it harder to solve.
Water law and land use planning is complex, but the bottom-line is that the county should not be allowing unplanned growth with illegal permits.
Methow Valley Citizens Council believes the Ordinance is a necessary first step to limit the risk to the County and property owners posed by continuing approval of land divisions and building permits without legally available water. It does not, however, go far enough.
We believe that the ordinance must be amended to fully comply with the law and thus to reduce uncertainty for the County and for owners and potential buyers of many lots in the Valley. A pause in residential development will allow the County and other interested parties time to obtain and analyze information, identify problems, and develop lasting solutions that protect the Methow Valley’s future water supply and direct growth in ways consistent with the community’s desires.
Long term vision
To move forward, the Methow Rule and the Comp Plan need to be updated together. That can only happen if the County proactively seeks community and stakeholder engagement which includes all parties affected – including the Tribes. Methow Valley Citizens Council has been – and still is – ready and willing to engage in any discussions that could lead to a positive outcome. But until that result is reached, the current Rule must be followed.
To do this, we need:
- A better understanding of physically available water year-round, including changes in timing from climate impacts.
- A shared vision for how this community wants to prioritize limited water use. Methow Valley Citizens Council is hearing a common thread that people want to maintain rural character. This means growth closer to towns, sustainable agriculture, and open space. We must understand how this approach effects available water, both legally and physically.
Methow Valley Citizens Council understands that responsible subdivisions and planned developments are part of the vision in the future, but our instream flow rule does not allow for that and must be rewritten to adapt to new realities and priorities. The first steps are to answer important questions regarding physically and legally available water and to identify the current legal obstacles to carefully planned growth that maintains our valley’s rural character – from Mazama to Pateros.