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Challenge to Exempt Wells Leads to New Controls on Water Use in Washington State

December 5, 2007

In the wake of a petition seeking a moratorium on new wells, Kittitas County, near Seattle, recently entered into an Agreement in Principle (“AIP”) with the Washington Department of Ecology (“Ecology”) aimed at managing the use of so-called “exempt” groundwater wells. “Exempt” wells are withdrawals for single or group domestic use in an amount not exceeding 5,000 gallons per day (“gpd”). Although new water permits have not been issued in the County since 1993, some developers have been able to obtain water from exempt wells, even as existing permit holders have been forced to ration their water use.

Exempt Wells in Washington

Ecology is vested with the statutory authority to issue water permits, and the agency may not issue a water permit unless it determines that the proposed use of water will not impair existing water rights.[1] As a general rule, the diversion of surface water is not allowed without a permit nor is the withdrawal of groundwater allowed without first obtaining a permit.[2] There are exceptions. For example, four classes of groundwater uses, presumed to involve relatively small withdrawals of water, are exempt from permitting.[3] The exception at issue in the petition that resulted in the AIP is groundwater withdrawals for single or group domestic uses in an amount not exceeding 5,000 gpd.

Under the exceptions to the permitting requirement, Ecology does not require exempt well users to quantify the amount of water actually used, and exempt wells generally are not metered. As a result, the actual amount of water withdrawn from exempt wells is difficult to quantify.[4] It is certain, however, that the cumulative impact of exempt well withdrawals affects groundwater supply,[5] particularly in areas such as Kittitas County, where the water supply is already fully appropriated, or even over-appropriated by, existing water uses. In addition, groundwater withdrawals may diminish instream flows of surface waters through hydraulic connections between surface water and groundwater.[6]

Another difficulty with the permit exemption is that there is a lack of clarity surrounding what the term “single or group domestic uses” precisely means. As a result, some have, in the past, taken an expansive view of the “single or group domestic uses” exception, and used this permit exemption to drill multiple wells to serve subdivisions. A subdivision development also could obtain its water supply by drilling a well on each individual lot rather than obtaining a withdrawal permit from Ecology and creating a public water system.[7] Another practice has been to create so-called "six packs," in which a developer used numerous exempt wells to create what would otherwise qualify as a public water system.[8] The systems consist of a single exempt well which can supply water to six residences,[9] thus the term "six-pack."[10]

Multiple “six-pack” water systems were, for many years, a potential legal exception to the state’s regulatory framework for water right permits. However, under a 1997 Washington State Attorney General Opinion, and a 2002 state Supreme Court decision, the Washington Attorney General and the Supreme Court concluded that the permit exemption for groundwater withdrawals for domestic uses of 5,000 gpd or less does not apply to a group of wells constructed as part of a single development if the aggregate withdrawal from the wells would exceed 5,000 gpd.[11]

The issue of exempt wells also has been taken up by Ecology’s Water Resources Advisory Committee (the “WRAC”), which has formed an Exempt Well Subgroup. The WRAC was created in 1996 and is comprised of representatives from environmental groups, resource use and protection organizations, local governments, state and federal agencies, Indian tribes, legislative staff, law and consulting firms, and engineering companies.[12] Its purposes include defining water resource management principles, focusing attention on specific elements of a shared water strategy, and increasing the understanding of water resource availability and scarcity.[13] The Exempt Well Subgroup has, among other priorities, assisted in the development of a draft rule and legislative concepts for clarifying the group domestic use exemption.[14]

Kittitas County Water Woes

Kittitas County, which is immediately east of King County, where Seattle is located, exemplifies the unintended consequences of unregulated development of exempt wells on water permit holders. Water in the area has been fully appropriated, and no new water permits have been issued since 1993.[15] But Kittitas County has grown at a pace that is double the state average, and nearly 1,000 new homes since 2004 were built with exempt wells.[16]

A significant element of any water right is the priority date of that right, which establishes the “seniority” of a water right relative to all other water rights in the same water source. With seniority of water rights, “first in time is first in right.”[17] When there is insufficient water available to satisfy all existing rights for use of that water, senior water users may continue to fully exercise their water rights, to the exclusion of more junior users.[18]

Priority rights coupled with exempt wells can have important practical ramifications for those with junior rights. During a 2005 drought, for example, the Kittitas County town of Roslyn, Washington was ordered to ration its water in order to accommodate farms and other senior water rights further down the Yakima River, while vacation homes with watered lawns just outside of Roslyn – served by exempt wells – were unaffected.[19] Twice in the past seven years, surface water rights with priority dates as old as 1906 have been shut off during droughts because senior water right holders were not able to divert water to which they were entitled.[20]

The Moratorium Petition

On September 10, 2007, an environmental group in Kittitas County known as Aqua Permanente petitioned Ecology to take the drastic step of imposing a moratorium on new exempt wells in Kittitas County, withdrawing all unappropriated groundwater resources in the county “until such time that sufficient information and data are available to allow for sound decisions on future withdrawal of groundwaters of the state.”[21] The Center for Environmental Law & Policy (“CELP”) joined in Aqua Permanente’s petition,[22] which was supported by the Washington Environmental Council, American Rivers, and Futurewise.[23]

The petition alleged that Aqua Permanente, “along with hundreds of senior water right holders and thousands of junior water right holders, are potentially threatened by the continued drilling of permit-exempt wells without knowledge of water resources,” and that Kittitas County had failed to “make sound [land use] decisions regarding water supply for new growth.”[24] The County’s acts and omissions, the petition alleged, created a critical situation in which uncontrolled growth using exempt wells threatened the existing water supply, and “there is no effective mechanism by which senior rights can be protected” against exempt well water users.[25]

Under the procedural rules Ecology had 30 days to respond to the petition. In interpreting its statutory obligations for responding, Ecology determined that it could either: (1) initiate a rulemaking to temporarily close the Yakima basin aquifers within Kittitas County to the use of exempt wells by withdrawing all unappropriated water from further appropriation; (2) reject the petition without proposing alternative action; or (3) propose a reasonable alternative to the moratorium sought by the petition.

After Kittitas County officials, state lawmakers from Moses Lake and Cle Elum, and local property owners expressed their opposition to the moratorium in published statements and during public “listening sessions” conducted by Ecology, the agency elected to propose an alternative to the moratorium in response to the petition.[26] On November 9, 2007, Ecology and Kittitas County reached agreement on an interim water management agreement intended to provide a framework for protecting senior water rights while reducing the impact of exempt wells on future water supplies in the Yakima basin.[27]

Ecology’s Compromise

Under the terms of the November 9, 2007 “Agreement in Principle for Development of a Formal Memorandum of Agreement Between Kittitas County and the State of Washington, Department of Ecology Regarding Management of Exempt Ground Water Wells in Kittitas County”[28] (“AIP”), Kittitas County and Ecology agreed to enact a number of interim water resource management measures (described below), initiate a groundwater study to provide information regarding groundwater availability, develop a mitigation mechanism by which developers and exempt well owners can purchase mitigation to offset water resource impacts associated with exempt well use, and develop a formal Memorandum of Agreement (“MOA”) to formalize the parties’ commitments.[29]

The interim management measures memorialized in the AIP include developing mechanisms to monitor the use of exempt wells, assessing potential impacts of exempt well use on ground and surface water resources, developing and enforcing exempt well residential development standards, and placing language on plat maps recorded in the County disclosing the risks associated with the reliability of water supply to current and future land owners. The measures will apply only to the upper (western) half of the County.[30] The data generated by the well monitoring may help to fill the information gap that characterizes the exempt well dispute: how much do exempt wells really impact water availability in a basin?

Implications

The proliferation of exempt well development is an issue of concern both across the state and across the West. In the Walla Walla Basin, for example, which straddles the Washington-Oregon border, an updated water management rule effective September 5, 2007, requires many new exempt well users in Washington to install a meter to record and report water use.[31] In Oregon, the legislature considered two water-related bills during the 2007 session that, had they been enacted, would have required all water users in the state to measure and report their water use,[32] and would have eliminated the statutory exemption from permitting for domestic wells.[33]

The updated Walla Walla Basin water management rule also requires new homes to connect to municipal water systems whenever possible.[34] That is an approach to exempt well management similar to that taken by the State of Colorado which, except in limited cases, prohibits exempt well use where a municipality or water district can provide water to the property.[35]

It remains to be seen whether the Kittitas County agreement will attain Ecology’s goal of permitting continued growth while protecting scarce water resources. Aqua Permanente and CELP, disappointed by Ecology’s denial of their petition, have requested the opportunity to participate in the development of the proposed County-Ecology MOA. Concerned that Ecology’s compromise simply preserves the status quo and will neither protect senior water rights nor slow down the proliferation of exempt wells, the petitioners are also considering whether to appeal the denial.

However, if the compromise proves successful, supporting the County’s desire for growth while addressing the water supply concerns raised by the petition, it may be a statewide model for coordinated state and county decision-making regarding land development and water availability determinations and mitigation measures for exempt groundwater use that may protect both existing water rights and future water supplies. Other states as well might also look to the novel Ecology approach for guidance in how to balance the competing interests of water and new development.

For more information about water resources, contact any member of Marten Law Group’s water resources practice.

[1] RCW 90.03.290.

[2] RCW 90.03.250; Peterson v. Department of Ecology, 92 Wn.2d 306, 596 P.2d 285 (1979).

[3] The four exceptions to the general rule that a permit is required include groundwater withdrawals for: (1) for stock watering purposes; (2) for watering a lawn or noncommercial garden not exceeding one-half acre in size; (3) for industrial purpose in an amount not exceeding 5,000 gallons per day (“gpd”); or (4) for single or group domestic uses in an amount not exceeding 5000 gpd. RCW 90.44.050.

[4] According to a Washington Department of Health report in August 1995, there were an estimated 404,000 single family domestic wells in the state, serving approximately 1 million people. In contrast, the National Ground Water Association estimated the total number of household groundwater wells in Washington at 263,523, serving 666,713 people. See Robert N. Caldwell, Six-Packs for Subdivisions: the Cumulative Effects of Washington’s Domestic Well Exemption, 28 Envtl.L. 1099 (1998).

[5] Robert N. Caldwell, Six-Packs for Subdivisions: The Cumulative Effects of Washington’s Domestic Well Exemption, 28 Envtl.L. 1099, 1108 – 20 (1998); Washington Attorney General Opinion AGO 1997 No. 6.

[6] The groundwater code recognizes that surface waters and groundwater may be in hydraulic continuity:

The rights to appropriate the surface waters of the state and the rights acquired by the appropriation and use of surface waters shall not be affected or impaired by any of the provisions of this supplementary chapter and, to the extent that any underground water is part of or tributary to the source of any surface stream or lake, or that the withdrawal of groundwater may affect the flow of any spring, water course, lake, or other body of surface water, the right of an appropriator and owner of surface water shall be superior to any subsequent right hereby authorized to be acquired in or to groundwater.
RCW 90.44.030.

[7] This practice has been curtailed in many jurisdictions by requiring that adequate water is available prior to approval of subdivisions and/or binding site plans. See, e.g., Pend Oreille County Interim Development Regulations (effective 12/12/06), Chapters 52, 64. In the absence of such regulations, a developer could subdivide the property without addressing water supply and place the burden of drilling an exempt well to provide water to the residence on the new homeowner. Each well would qualify as a separate 5,000 gpd domestic use exemption.

[8] WAC 246-290 Table 1.

[9] Or, three residences on the east side of the Cascade Mountains.

[10] This is based on Department of Health drinking water system design rules of thumb of 800 gpd demand per residential unit for Western Washington, and 1,500 gpd demand per residential unit in Eastern Washington (east of the Cascade Mountains). Department of Health, Division of Environmental Health Office of Drinking Water, Water System Design Manual, Chapter 5 at 5.4 – 5.5 (August 2001).

[11] Status in Water Rights System of Exempt Ground Water Withdrawals, AGO 1997 No. 6; Dept. of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 43 P.3d 4 (2002).

[12] Background of WRAC, http://www.ecy.wa.gov/programs/WR/wrac/wrachome.html.

[13] Id.

[14] Exempt Well Workgroup August 30, 2007 meeting notes and Don Davidson, Ecology Water Resources – HQ presentation materials, “Draft Rule and Legislation Concepts for Clarifying Group Domestic Use” available at http://www.ecy.wa.gov/programs/WR/wrac/wrachome.html.

[15] Jonathan Martin, “Big growth, big fight over water,” The Seattle Times (11/21/07), available at http://seattletimes.nwsource.com/html/localnews/2004026753_water21m.html.

[16] Id.

[17] 1891 Wash. Laws ch. CXLII, §1, p. 327.

[18] Christine O. Gregoire, James K. Pharris, P. Thomas McDonald, An Introduction to Washington Water Law (January, 2000) at III:25 - 26.

[19] Id.

[20] “Kittitas County Water petition, Ecology has concerns,” http://www.ecy.wa.gov/programs/wr/cro/kittitas_wp.html.

[21] Amended Petition to the Department of Ecology to Adopt RCW 90.54.050 Setting Aside or Withdrawing Ground Waters of Kittitas County – 10 September 2007, available at http://www.ecy.wa.gov/programs/wr/cro/images/pdfs/KittitaspetitionFINAL.pdf. Ecology has the authority, under RCW 90.54.050(2), to withdraw various waters of the state from additional appropriations, when sufficient information and data are lacking to allow for the making of sound decisions, until such data and information are available.

[22] http://www.ecy.wa.gov/programs/wr/cro/images/pdfs/CELPKittitasPetition.pdf.

[23] http://www.waterplanet.ws/pdf/wpkittitasWECARFuturewise20071102.pdf.

[24] Amended Petition to the Department of Ecology to Adopt RCW 90.54.050 Setting Aside or Withdrawing Ground Waters of Kittitas County – 10 September 2007, available at http://www.ecy.wa.gov/programs/wr/cro/images/pdfs/KittitaspetitionFINAL.pdf.

[25] Id.

[26] Mike Johnston, “Exempt-well impact solution?” Daily Record (10/27/07), available at http://kvnews.com/articles/2007/10/26/news/doc4722963c1298a077447211.txt; Mike Johnston, “County officials: no well moratorium warranted,” Daily Record (11/1/07), available at http://kvnews.com/articles/2007/11/01/news/doc47262dd7069a7857979035.txt; Press Release, Sen. Holmquist: “Water moratorium must use sound, scientific research; sets terrible precedent” (9/28/07), http://src.wa.gov/media2007/2007Releases/Holmquist/HolmquistWaterMoratorium092807.htm; Press Release, “13th District lawmakers urge Department of Ecology to continue exempt well allowances in Kittitas County” (10/25/07), http://www.houserepublicans.wa.gov/Warnick/newsroom/071025.htm; see also, http://www.ecy.wa.gov/programs/wr/cro/images/pdfs/communitymeetingadfinal.pdf; http://www.tvw.org/media/mediaplayer.cfm?evid=2007100162&TYPE=V&CFID=1455104&CFTOKEN=657e6d60c8d1aa59-1C0FC216-3048-349E-4E6A54ECA37158A4&bhcp=1; Waterchat, “WA: Ecology, Kittitas County Sign Groundwater Well Agreement,” (11/9/07), available at http://www.waterchat.com/News/State/07/Q4/state_071114_04.htm (noting that the majority of the dozens of county residents who spoke at Ecology listening sessions opposed the moratorium).

[27] Department of Ecology News Release 07-335, “Ecology, Kittitas County sign groundwater well agreement,” (11/9/07), available at http://www.ecy.wa.gov/news/2007news/2007-335.html.

[28] Agreement in Principle for Development of a Formal Memorandum of Agreement Between the Kittitas County and the State of Washington, Department of Ecology Regarding Management of Exempt Ground Water Wells in Kittitas County, available at http://www.ecy.wa.gov/programs/wr/cro/images/pdfs/signed_AIP.pdf.

[29] Id. at §§2(A) – (E).

[30] Id.at §2(A).

[31] http://www.ecy.wa.gov/pubs/0711038.pdf.

[32] House Bill 2564, http://www.kwua.org/legislation/HB2564_2566_032407.htm.

[33] House Bill 2566, http://www.kwua.org/legislation/HB2564_2566_032407.htm.

[34] Washington State Department of Ecology, “Changes to future ground water use in the Walla Walla Basin: What builders, real estate agents and home owners need to know” (Publication #07-11-033), available at http://www.ecy.wa.gov/programs/wr/instream-flows/Images/pdfs/Walla_Walla_BRO_WEB.pdf.

[35] Colorado Department of Natural Resources, Division of Water Resources, “Guide to Colorado Well Permits, Water Rights, and Water Administration” (Rev. 7/07), available at http://water.state.co.us/pubs/wellpermitguide.pdf.

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