Hi all,
Wow. I leave you alone for a day and you manage to have a lively discussion about impact fees and exempt wells.
I noted that a number of readers are interested in learning more about exempt wells - (I'd like to thank Dan McShane for joining the discussion and sharing his expertise with us).
I understand that Greg Kirsch has concerns about exempt wells, but name calling and personal attacks will not assist Washington residents in solving a looming water shortage.
For readers who would like to review current and past water law, AGO Opinions and a Introduction to Washington Water Law -- I have provided links to sites that you may find useful. Western States Water Law and Findlaw
Again, I have very little tolerance for gossip and rumors surrounding Washington Water Law. Whatcom County is blessed to have dozens of dedicated volunteers and community leaders who have worked tirelessly on water resource issues. (I'm a relative newcomer, with only 20 years of activism). Here is a link to the Western Water Law Policy Center at Boulder, where I studied Watershed Management and Collaborative process back in 1999. The center has an amazing array of studies that some readers may find interesting.
Questions about Western Water Law, Washington Water Law, public policy, exempt wells and spirited debate are welcome. (Please refrain from name calling or accusations of corruption).
That said, Mark Twain probably said it best, "Whiskey is for drinking and water is for fighting..." Remember, let's try to keep it civil! (I will provide additional links for readers as I find them).
State Water Use Laws: The Ground Water Permit Exemption RCW 90.44.050
The groundwater permit exemption allows the users of small quantities of ground water to construct wells and develop their water supplies without first obtaining a water right permit from Ecology.
In Washington State, prospective water users must obtain authorization in the form of a water right permit or certificate from the Department of Ecology (Ecology) before withdrawing ground water.
The only exception to the permit requirement is for withdrawals of groundwater for:
Providing water for livestock (no gallon per day limit).
Watering a non-commercial lawn or garden one-half acre in size or less (no gallon per day limit, however limited to reasonable use).
Providing water for a single home or groups of homes (limited to 5,000 gallons per day).
Providing water for industrial purposes, including irrigation (limited to 5,000 gallons per day but no acre limit).
Use of Permit Exempt Wells
The statute, RCW 90.44.050, authorizing exempt wells was originally included in the Ground Water Code in 1945 to allow small uses of water where community supply was not available. Currently exempt wells are legally used across the state to serve single homes, small developments, irrigation of small lawns and gardens, industry and stock watering.
Although permit exempt ground water withdrawals don’t require a water right permit, to the extent the ground water is beneficially used, the water user withdrawing ground water under the exemption establishes a water right that enjoys the same privileges as a water right permit or certificate obtained directly from Ecology. For example, an existing permit exempt right may not be impaired by a junior withdrawal.
Permit exempt water users do have the option of applying for a water right permit from Ecology even if their uses fall within the purposes and quantities listed above. For a permit to be granted, the application must pass the 4-part test in the same fashion as any other water right application.
Restrictions on Permit Exempt Wells
Water use of any sort is subject to the "first in time, first in right" clause, originally established in historical western water law and now part of Washington State law. This means that a senior right cannot be impaired by a junior right. Seniority is established by priority date - the date an application was filed for a permitted or certificated water right or the date that water was first put to beneficial use in the case of claims and exempt ground water withdrawals.
One ground water exemption is allowed for any one project regardless of size. It is important to note that all wells for a given project apply toward the limits of the exemption. If you wish to develop land and supply the industrial or domestic development with water from several wells, all the wells of the development together must pump 5,000 gallons a day or less to be covered under this exemption. If the cumulative total of withdrawn ground water for an industrial or domestic project exceeds 5,000 gallons a day, a water right is required.
Although permit exempt ground water withdrawals don’t require a water right permit, to the extent the ground water is beneficially used, the water user withdrawing ground water under the exemption establishes a water right that is subject to the same privileges and restrictions as a water right permit or certificate obtained directly from Ecology. Although exempt ground water withdrawals don’t require a water right permit, they are always subject to state water law. In some instances, Ecology has had to regulate, stop or reduce ground water withdrawals when they interfere with prior or “senior” water rights, including instream flow rules.
More information and links to AGO Opinions
Attorney General Opinions (AGO) regarding the groundwater exemption
On September 21, 2009, the state Attorney General's Office issued a formal opinion regarding the interpretation of statutes exempting certain withdrawals of groundwater from permitting requirements, and authorizing the Department of Ecology to withdraw waters from appropriation.
Attorney General Opinion September 21, 2009 - AGO 2009 No. 6
On November 18, 2005, the state Attorney General’s Office issued a formal opinion regarding how the groundwater exemption, especially for watering livestock, should be applied. In 1997, an AGO was issued regarding some general questions regarding permit exempt withdrawals.
AGO 2005 No. 17 Water - Water Rights - Department of Ecology - Rules and Regulations - Interpretation of statutory language exempting withdrawals of groundwater for stock-watering from permitting requirements.
AGO 1997 No. 6 - Water - Water Rights - Wells - Status in water rights system of exempt ground water withdrawals
AGO 1992 No. 17 - Growth Management Act -Requirement of Adequate Water Supply Before a Building Permit is Issued - July 28, 1992
Case Law regarding groundwater exemption: Campbell & Gwinn Postema Kim
Instream Flow Rulemaking - Ground water component
Instream flows have been established for many, but not all streams and rivers around the state. The term "instream flow" is used to identify a specific stream flow at a specific location for a defined time, and typically following seasonal variations. Instream flows are usually defined as the stream flows needed to protect and preserve instream resources and values, such as fish, wildlife and recreation. Instream flows are described and established in an adopted state rule and are considered water rights held by the state.
Depending on the specific language of an instream flow or closure rule, the provisions may or may not apply to permit exempt wells in the basin covered by the rule. Recent instreaminstream flow rules and amendments to existing rules allow the reservation of water for future small domestic groundwater withdrawals. In order to minimize the effects to fish resulting from reservation that are made senior to instream flows, reservations are ordinarily limited to specific areas and quantities. In these specific areas where the use of permit exempt ground water withdrawals is generally the only available water supply, an amount of water can be reserved and made available for those uses not limited by instream flow regulations. Each new exempt use is debited against the reservation and once the reservation is exhausted, no more exempt wells will be allowed within that defined area.
Because these reservations are considered senior to instream flows, the reservation places the risk on the fish and wildlife in a situation of shortage. Thus the amount of the reservation is generally limited to:
The smallest amount practicable that substantially accomplishes the goal of the reservation.
Uses that provide water for critical needs during low flow periods-- indoor domestic use.
Uses for which public water service is not available.
Reasonable limitations, especially metering and reporting, compliance with conservation standards, and monitoring and tracking the cumulative effects of the withdrawals are considered as reservations are established.
Easterday Ranches Inc., Stockwater Exemption issues under the Groundwater Code - Five Corners Family Farmers, et al. v. State of Washington, et al., Franklin County Superior Court Case No. 09-2-51185-6
*Updated information as of March 2010
Additional Resource Materials: (To be updated as additional info becomes available)
Exempt Wells in the West
Water Needs and Stratgegies for a Sustainable Future
WA Department of Health brochure
WSDOE Water Rights
WRIA 1 (Whatcom County)
Newspaper Articles
Seattle Times - Big Growth, Big Fight over Water
Environmental Law Opinion:
Marten Law
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