The Critical Areas Ordinance (CAO) regulates development in wetlands, areas that affect aquifers used for potable water, fish, and wildlife habitat, frequently flooded areas, and geologically hazardous areas. Under state law, the couty must use the best available science to protect these critical areas. MVCC has submitted lengthy comments on earlier drafts of the CAO in both 2009 and 2010.
MVCC and others still have these major concerns about the current draft of the CAO:
• It does not use the best available science—scientific research justifies stronger environmental protections than those in the CAO. MVCC is especially concerned that little has been done to protect critical aquifer-recharge areas. Studies conducted in the Methow and Okanogan watersheds that document the limitations of aquifers and forecast water shortages—particular in the Lower Methow Valley and Okanogan Highlands such as Tunk Valley and Havillah-Chesaw-Molson areas—aren't even mentioned.
• The maps that will be used to determine whether a critical area exists on a particular parcel are inadequate, imprecise and difficult to read.
• The ordinance allows the county "administrator" to interpret critical area regulation liberally when reviewing development proposals. This could nullify important critical area protection.
The county commissioners will hold a public hearing before approving the CAO, but most likely not until after they have finished the comprehensive plan.
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)
The Planning Director recently changed his decision to issue an EIS based upon his determination that the most recent draft of the Comprehensive Plan is no longer sufficiently different from the current 50-year-old Comprehensive Plan to require an EIS. Futurewise and MVCC claim that the county is responsible to reveal and analyze not only the differences between the proposed Comprehensive Plan and the current Plan, but also the probable impacts of the proposed Plan.
The groups contend that the Environmental (SEPA) Checklist used to determine whether or not an EIS is necessary did not adequately reveal a variety of serious potential impacts under the proposed Comprehensive Plan. These include designating areas for future high density residential development where water is already over-allocated and allowing the possibility for glue manufacturing, asphalt batch plants, rendering, and waste disposal landfills to be built over sensitive aquifers or within proximity of public water supplies. The impacts of paving over orchards and farmlands in areas zoned for 1-acre lots and the effects of densely located septic systems upon wells are also of great concern.
MVCC Board member Isabelle Spohn stated, “After 7 years of input by the public, it is disappointing to see a document that minimizes both the value of scientific information and the thoughtful work of many citizens toward planning sensible future development.”
Tim Trohimovich, attorney for the organizations, questioned the validity of county assertions that an EIS is not needed because plans and ordinances such as the Shoreline Master Program and Critical Areas Ordinance will provide needed environmental protections and impact mitigation measures. He pointed out that these documents have not yet been adopted and the county is well behind schedule in meeting its state-mandated obligations to update them. “The SEPA Checklist does not disclose the impacts that will occur if these mitigation measures are adopted late or never adopted,” he stated.
“The Comprehensive Plan guides the future direction of all areas of our county, and MVCC remains committed to protection of the Methow Valley’s natural environment and rural character as a part of this planning effort,” commented Phil Millam, MVCC Vice-President.
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.
It's hard to believe. In the past two years our elected county officials have taken the following actions:
• Attempted to open all county roads to ATVs, in violation of state law,
• Maximized the exemptions available to developers to avoid environmental review of proposed projects,
• Hired a founding member of the Coalition for Property Rights as the Hearing examiner for land use appeals and then expanded his authority, diminishing the role of citizens serving on the Okanogan County Planning Commision,
• Limited citizen administrative appeal rights for many county actions,
• Ignored years of citizen input and scientific information—especially regarding water availability—in drafting the Comprehensive Plan, which provides guidance for all zoning and development in the county,
• Declared the resulting plan to have no significant environmental effects, without conducting any meaningful environmental review,
• Missed state-mandated deadlines to revise the outdated Shoreline Mast Program and Critical Areas Ordinance.
In the face of these and other concerted efforts to deregulate development countywide, litigation has become a necessary tool—one of last resort—to protect the environment and rural character of the Methow. MVCC has chanllenged the 2013 and 2014 ATV ordinances, and the county's decision to exempt many developments from State Environmental Policy Act (SEPA) review. It is likely that further appeals will be necessary to require adequate environmental review of the property rights-driven Comprehensive Plan. If the county continues its expected course for Shoreline Management and Critical Areas, MVCC will have several legal challenges underway in 2015.
In each case, MVCC and its supporters must comment within tight deadlines, building a record for appeals and possible litigation. This requires your help with research and to weigh in on county actions.
We also rely heavily on your financial contributions. A typical lawsuit costs about $10,000. Wuthout essential suppor from MVCC volunteers and donors, and from regional environmental partners like Conservation Northwest and Future-Wise who share attorney fees, the price for staying the course would be much higher.
• To achieve a land-use regulatory framework that recognizes the need to protect wildlands and adapt development patterns to changing climate, including extended drought and the increased frequency and severity of wildfires, floods and debris flows.
• To ensure continued delivery of exceptional ecosystem services, including maintenance of water quality and quantity, and habitat for human use, for threatened and endangered fish species and for the many wildlife species present here.
• To ensure that Okanogan County complies with state legislative intent on Comprehensive Planning, zoning, Critical Area and Shorelines regulation, legal ATV use and the application of the State Environmental Policy Act.
MVCC is grounded in a belief that people who love the Methow Valley want to achieve the most environmentally protective policies in Okanogn County's land-use framework. To accomplish this we must summon the will and resources to both galvanize a strong community voice and undertake targeted legal action.
For more information on MVCC work go to: