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.
Yakima (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 v. E. Wash. Growth Mgmt.Hearings Bd. (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)
Supporting the designation of sub-area plans countywide is adviseable as our county is diverse in culture and in landscape, keeping development out of rural areas. The draft does generically state the need to create separate zoning rules that respond to unique conditions in various areas of the county such as the Methow Review District. However, it does not give enough direction regarding the possibilities of creating sub-areas in other parts of the county. It is important for our rural areas of the county to have local control allowing us to have control over high density and sprawl in rural areas that could trigger Growth Management Act restrictions by increasing county population and compromising existing rural areas.
The Okanogan Recreation Plan Draft is available for review. It mentions the development of the Similkameen Connector Trail that will join the Pacific Northwest Trail system using the old railway bed along the Similkameen River to Nighthawk as an important addition that will support the lifestyle and economic sustainability of local residents within Okanogan County.
The County has invested a considerable amount of money in developing this trail which passes through an extremely impressive canyon as well as beside Similkameen Falls just west of Oroville.