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Bioregional
Education Project
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Oroville WA 98844
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© 2012 Columbiana
• The Great Food Crisis of 2011
by Lester Brown
• For Wildlife, a Safe Highway Crossing
by Matthew L. Wald
• Food Security in the Okanogan
by Michael Skeeter Pilarski
• Individual and Community Strategies for Surviving the Energy Crisis Conference
• Most Indigenous Traditions Teach about Sustainable Lifestyles
• Lake Roosevelt Drawdown Bad for River, Taxpayers, and Fish Benefit is Fictional
• Water Planet: Learn About Issues on the Upper Columbia River Watershed
• The Economics of Sin and Virtue
• The Growth of Greed: Waylaying Caution is Morally Reprehensible and Practically Dangerous
• It's the Morality, Sinner: Greed of Lenders not Responsibility of Taxpayers
• With Democracy or Against it—There's No In Between
• Recognizing the Language of Tyranny
• Peaceful Passage without Intimidation is Our Goal
• Ten Steps to a Sustainable Energy Future
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ENERGY
• High Altitude Wind Power Generators
• Magenn Power Air Rotory Generator SystemSetup Anywhere
• Laddermill Exploits Energy in Airspace
Recent Court Decision Holds that WA State Counties Must Now Regulate the Legal Usage of Water for Subdivisions 1.10.12
A recent decision by the WA State Supreme Court has implications for future water management by counties in regard to subdivisions. In Kittitas County vs. E. Wash. Growth Managment Hearings Board (172 Wn 2d 144; July 28, 2011), the Court ruled that counties will now have to regulate both the factual and legal aspects of water usage in proposed subdivisions.
Up to now Okanogan County has refused to recognize that it has a role in deciding whether the use of multiple exempt wells by one developer can be grounds for denying the project. It has ignored the 2002 Campbell-Gwinn decision, maintaining that because the Dept. of Ecology is the state’s water regulating agency that only they have the responsibility of taking developers to court on this issue. In the case of Eagle Canyon, Tonasket Homesteading LLC proposed 8 “exempt” wells (each limited to 5,000 gallons per day, gpd) for the 88 lot project in 6 phases. The County approved the development agreement, even though the Dept. of Ecology commented that according to Campbell-Gwinn more than one exempt well was illegal and the subdivision would therefore need domestic water rights.
Besides arguing it is not their job to require the necessary water rights, the County has claimed that it already meets it’s responsibilities by requiring “water adequacy”, or the factual availability of groundwater. They base this on the fact that before a subdivision receives final approval, the County Health Dept. (or State Health Dept. if the well has more than 9 hook-ups) must certify “water adequacy”, i.e., that the “exempt” well(s) has sufficient potable water for domestic use of each household it is designated to serve.
On a Group B exempt well serving 14 hook-ups on 5,000 gpd this would provide only 357 gpd per household. This would not allow for irrigation water. However this approval usually occurs long after the subdivision has already been approved and vested. It does nothing to protect the water rights of other water users in the area who may have prior rights.
In the Kittitas case the Court found several relevant WA state statutes stating that counties must regulate to some extent to assure that land use is not inconsistent with available groundwater. The Court also found that “to interpret the County’s role under RCW 58.17.110 to only require the County to assure that water is physically underground effectively allows the County to condone the evasion of our state’s water permitting laws. This could come at great cost to the existing water rights of nearby property owners…..”
The Okanogan Planning Dept. should follow the Court’s opinion to regulate legal water usage for subdivisions. The evaluation as to whether the proposed water usage is legal should be required when the application is first filed, not after it is vested and approved. Not only will this save the Dept. much work and expense, it should also insure that neighboring water users rights will not be negatively affected. Citizens should not be required to take the County to court to protect their water rights from unconstrained and illegal water usage.
(To read the complete Supreme Court decision, Google under “Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., No. 841870)—Jessica McNamara
Eagle Canyon Lawsuit has
Cost Plaintiffs $65,000 Thus Far
1.10.12
Those of you who read the article in our last issue on the challenge to Tonasket Homesteading LLC’s 88 lot Eagle Canyon development project on North Pine Creek by McNamara, Harris and Black may be wondering what happened to the case. Here’s a brief update.
On Dec. 6th, 2010 we lost our 2nd appeal to the county commissioners (the first was in Feb. 2009) on the 2nd SEPA process. The developer had issued a second SEPA checklist which we thought totally disregarded Judge Burchard’s findings and order from the Sept. 2009 LUPA hearing. So we filed a 2nd land use petition (LUPA) to Okanogan Superior Court, hoping that Judge Burchard would recognize that the developers and Planning Dept. had ignored his earlier decision.
When our attorney requested a transcript of our Dec. 6th appeal hearing however, he was told that 64 minutes of the testimony had been “lost”. Apparently there was a break-down in the transcribing equipment. What a coincidence that the “lost” testimony was that of Bob Harris, our main witness; the main arguments of our attorney, Bill Monnette; and remarks by the commissioners that severely tested the “appearance of fairness” law.
On August 3, 2011 Judge Burchard heard our motion for order for stay, remand for further proceedings, and an award of Attorney’s fees and costs. Basically we requested that the proponents follow the Judge’s original order and submit a new, accurate SEPA checklist; obtain water rights for both domestic and irrigation water for the entire 88 unit project; and provide specific information on the second access road. Claiming he could not do this because the appeal hearing record was incomplete, the Judge opted only to order that the clock be turned back to last December and the appeal hearing before the commissioners be repeated. Then, if we chose, we could file yet another LUPA based on that hearing.
There was no consideration that the County was at fault for losing the testimony that required this repeat, nor any attempt to re-imburse us for our attorney’s work for the lost hearing. It almost appears that in this county there is no way a developer will be allowed to lose. As one of the commissioners remarked to Bob Harris at the last hearing, she could not see why we were even there and that no developer has had to go through this legal process! NO doubt! Had Bob’s water and therefore his livelihood not been threatened it is doubtful he would have persisted. We were informed by a reputable source that the County is only getting away with these practices because no one can afford to legally challenge it.
The “repeat” appeal hearing is now tentatively scheduled for March or April of 2012. We invite you all to come and observe our county’s “justice” system in action. Also any contributions to our legal expenses would be very helpful. These can be sent to Bob Harris Legal Fund, 177 Tonasket Airport Rd., Tonasket, 98855.
Correction to the original article: Due to an editing lapse, we neglected to include the fact that Tom and Linda Black, Airport Rd residents whose property overlooks most of the proposed development, were also parties to the appeal. Both contributed hugely to publicizing, organizing people, and supplying exhibits.
The Okanogan Board of County Commissioners will conduct a SEPA (State Environmental Policy Act) Hearing on the Eagle Canyon Long Plat Development, Tonasket WA on March 19, at 1:30 pm in room #150, Virginia Grainer Building, 123 Fifth Avenue North, Okanogan WA. This hearing is open to the public. —Jessica McNamara
Report Shows Enloe Dam To Be Economic Loss
Oroville—On Tuesday, January 24, 2012, the Columbia Bioregional Education Project (Columbiana), joined by several conservation groups, issued a new economic analysis of Okanogan Public Utility District's (PUD) pro-
posal to restart hydropower generation at Enloe Dam on the Similkameen River. The analysis, prepared by Rocky Mountain Econometrics (RME) of Boise, ID, concludes that it is not possible for the PUD to sell power from Enloe Dam at or above the cost of producing it, and that the PUD will lose $26 for every megawatt hour produced at the dam.
Click to go to Enloe Dam Page or Enloe Economic Report
More information about the Hydropower Reform Coalition and member groups, as well as Recent History of Enloe Dam Relicensing.
