Water conflict flares anew in Kittitas County

ELLENSBURG -- Kittitas County commissioners say the county will begin issuing building permits in the upper part of the county, regardless of state concerns about water supply and a 10-month moratorium on new water wells needed to serve new homes.

The move, announced in a letter last week to the Department of Ecology, ratchets up the political war between the county and the state and could send the issue into the courts.

Ecology imposed an emergency ban on wells for new homes last July out of concern that they are taking water that belongs to senior right holders, farmers and to the Yakama Nation for use in streams for fish and other aquatic life.

The federal Bureau of Reclamation obtained a right to all remaining surface water in 1905 to serve its Yakima Irrigation Project.

The state and owners of senior rights say all groundwater eventually reaches streams and other surface water. Any use of groundwater, they say, interrupts the flow to surface water, which affects senior rights.

Ecology's moratorium marked the first time wells for homes, which are exempt from a state requirement to obtain a permit, have been prohibited. Kittitas County commissioners have opposed the moratorium, arguing no emergency exists to warrant a ban.

Commissioner Paul Jewell, the commissioners' primary contact on the well issue, said commissioners made the decision to issue building permits again after receiving requests.

Development in the county had already begun slowing before the moratorium, because of the economic downturn.

The only new wells put into use since the moratorium are those for which a senior water right has been obtained to offset the new use, known as "water budget neutrality."

"We have been receiving some requests that did not necessarily include some water budget neutrality and we were looking at how to address those," Jewell explained in an interview Thursday. "We are concerned about potential liability for the county if we deny a permit and the basis for denial is not within our scope of authority."

Some property owners have received permission to begin building, thanks to an upper county "water bank." The water bank, operated by the huge mountain resort Suncadia, has sold portions of old senior surface water rights the resort obtained. The Department of Ecology required Suncadia to purchase senior rights in addition to water needed for the resort because of a belief Suncadia's existence would attract additional development outside its borders.

The upper Kittitas Valley has been a fertile area for monied residents from the Seattle area looking for second homes. Local political and business leaders have complained that the state ban is choking the county's ability to grow.

The decision to issue building permits puts the onus on the state Department of Ecology to challenge it in court.

Property owners seeking a building permit without proof of a legal right to the water will have to assess what risk they may be taking should a court order them to halt construction.

Owners of those homes also run the risk of being ordered to stop using water the next time water is rationed due to a drought.

The county's decision also highlights a fundamental disagreement between it and Ecology over whose responsibility it is to determine legal access to use water.

Jewell said the county believes it is obligated under state law to determine only whether water is available and is adequate to supply a home.

It's up to Ecology, Jewell said, to say whether a legal right exists to use the water.

"We don't have any desire to become involved in water rights nor do we have the legal authority to do so," Jewell said. "Whether there is a right to the water is Ecology's authority and not the county."

Ecology officials responded that the agency only wants the county to ask for proof that the owner has a legal right to use the water before issuing a building permit.

Ecology officials call the county's move disappointing but declined to say more. The agency will submit a response to the commissioners' June 14 letter outlining the county's plans.

Ecology Director Ted Sturdevant was in Yakima on Wednesday to address a broad-based group that's working on a plan to meet future water needs in the Yakima River basin and to restore fish. When asked about Kittitas County's decision to resume processing building permits, Sturdevant wouldn't address the letter.

He did say that government agencies should work together to resolve water issues like the well ban and not issue mixed messages to property owners.

Commissioners and Ecology representatives are scheduling a meeting in early July to talk about the well issue.

The county building department did not return a phone call Thursday seeking information on new building permits. Jewell said he is not aware whether any had been issued.

A representative of the Spokane-based Center for Environmental Law and Policy said the county is taking the wrong approach. The center has been critical of both the county and Ecology over the fact that new wells have been drilled in an area where all the water was already spoken for back in the early 1900s.

Rachael Paschal Osborn said she suspects the county's decision to resume issuing building permits likely would be overturned if challenged in court.

"For the county not to respect that (moratorium) determination is provocative. I'm not sure what they expect will happen. It will be a big mess and a disservice to the people of Kittitas County who want to develop property," she said. "They are getting mixed messages."

Public hearing on well ban

A permanent rule banning new, unmiti-gated water wells in upper Kittitas County is being proposed by the Washington Department of Ecology.

The permanent rule, replacing emergency rules in effect since last July, will be the subject of a public hearing July 28 at Walter Strom Middle School, 2696 State Route 903 in Cle Elum.

Water use for structures with building permits issued prior to imposition of the first emergency rule on July 16, 2009, are exempt from the rule.

Ecology will accept public comment until Aug. 11. In addition to the hearing, comments can be submitted to Mark Schuppe at theagency's Central Region Office in Yakima,15 W. Yakima Ave., Suite 200, 98902-3452,or by e-mail to kittitas@ecy.wa.gov.

The proposed rule is posted online at www.ecy.wa.gov/programs/wr/cro/kittitas_wp.html.

* David Lester can be reached at 509-577-7674 or dlester@yakimaherald.com.