Center for

  Environmental Law & Policy

Nookachamps Creek

(Mt. Vernon in the left lower corner.) 

A “reserve” for future water allocations via “exempt wells” threatens stream habitat and water quality.   The Swinomish Tribe is challenging the rule.  (Google Earth)

Exempt wells were originally intended to serve rural family farms.  But as those farms are subdivided, exempt wells multiply to provide the water.

Rural Sprawl.  Exempt wells fuel rural sprawl and “lower-density” subdivisions, even where water is not otherwise available.

Stockwatering & Exempt Wells


Links:


  1. -Five Corners Family Farmers

  2. -Exempt Wells - Kittitas County

  3. -Conference Proceedings on Exempt Wells



Overview:  Exempt Wells


Current Activities


Proliferation of domestic exempt wells are becoming a major problem for water management in Washington.  It’s time for public officials to address these issues.


Background:


“Domestic exempt wells” are wells that withdraw 5,000 gallons per day (gpd) or less to serve homes, small businesses, non-commercial lawns and gardens and livestock.  These wells are unique in that they are exempt from water right permitting, and so do not entail the usual assessment of impacts on the environment and other water users.  Otherwise, however, they function as a normal water right (such as priority date, beneficial use, etc.).


The rationale for exempting domestic wells from permitting is that rural development needs water supply, and 5,000 gpd is considered a de minimus amount.  This is a false assumption, however, given that as many as half-million exempt wells already exist in Washington and between 7,000 to 10,000 new exempt wells are being drilled each year.  Cumulatively, exempt wells are doing a lot of damage to Washington’s smaller stream systems.


The exempt well statute creates a number of problems:


Six Packs.  Developer abuse or the so-called “Six Pack” problem, in which multiple homes are built using multiple exempt wells.   Local jurisdictions (primarily counties) are supposed to make a determination of water availability for building permits.  They often issue permits based on the use of exempt wells – regardless of whether water is physically available without harm to other users and the environment.


The Department of Ecology is currently attempting to resolve the county-exempt well-building permit problem through a working group and proposed memorandum of agreement.  Unfortunately, this process is not open to the public or interested tribes.


Documents (click for pdf)


1) Ecology-County draft Memorandum of Understanding

2) Working Group “To Do” List, June 13, 2007

3) Power Point Text, Working Group, Oct 19, 2006


Stock Watering.  In 2005 Attorney General Rob McKenna issued a formal opinion that the quantity of water that can be withdrawn from an exempt well for livestock water supply is unlimited.  As a result, industrial animal feedlots can now abuse the exemption to withdraw large amounts of water without any permit or consideration of impacts to the environmental or other water users


Reserves.  There is increasing use of exempt well reserves in instream flow rules, subjecting instream flows to future out-of-stream water use, regardless of impact, for example in the new Skagit and draft Walla Walla WRIA rules.


Adjudications.  Washington does not include exempt wells in general stream adjudications (contrast, for example, Idaho where adjudications do include exempt wells and are therefore much more complete).  Hence, the costly and time-intensive adjudication process results in an incomplete final decree, and Ecology lacks needed information to enforce against exempt wells that impair other water rights or harm instream flows.






  CELP’s Water Programs

•  Water Rights
 Columbia River Watershed
 Restoring Rivers
•  Government Affairs
 Our Water Future


http://www.celp.org/water/celpprograms/Water_Rights_%26_the_Public_Interest.htmlhttp://www.celp.org/water/celpissues/Columbia_Watershed.htmlhttp://www.celp.org/water/celpprograms/River_Restoration.htmlhttp://www.celp.org/water/celpprograms/Governmental_Affairs.htmlhttp://www.celp.org/water/celpprograms/Water_Vision_for_the_Future.htmlshapeimage_3_link_0shapeimage_3_link_1shapeimage_3_link_2shapeimage_3_link_3shapeimage_3_link_4

Factory Farms.  According to Rob McKenna dairies and other feedlots may use unlimited quantities of water from exempt wells.


Support CELP’s work to reform exempt well abuse

Current Issues


The proliferation of permit-exempt wells is a major problem for water management in Washington.  It is time for public officials to address these issues.


Background:


“Domestic exempt wells” are wells that withdraw 5,000 gallons per day (gpd) or less to serve homes, small businesses, non-commercial lawns and gardens and livestock.  These wells are unique in that they are exempt from water right permitting, and so do not entail the usual assessment of impacts on the environment and other water users.  Otherwise, however, they function as a normal water right (such as priority date, beneficial use, etc.).


The rationale for exempting domestic wells from permitting is that rural development needs water supply, and 5,000 gpd is a de minimus amount of water.  This is a false assumption, however, given that as many as a half-million exempt wells already exist in Washington and between 5,000 to 10,000 new exempt wells are being drilled each year.  Cumulatively, exempt wells are doing a lot of damage to Washington’s drinking water aquifers and stream systems.


Exempt wells are also not de minimus because the Attorney General has issued two recent opinions interpreting the statute to mean that exempt wells may be used in unlimited quantities for stockwater and lawn & garden watering purposes.  Unlimited water use is not de minimus!


The exempt well statute creates a number of problems:


Six Packs.  Developer abuse or the so-called “Six Pack” problem, in which multiple homes are built using multiple exempt wells.   Local jurisdictions (primarily counties) are supposed to make a determination of water availability for building permits.  They often issue permits based on the use of exempt wells – regardless of whether water is physically available without harm to other users and the environment.


The Department of Ecology attempted to resolve the county-exempt well-building permit problem through a working group and proposed memorandum of agreement.  This process failed, with most counties signing on to a “no confidence” survey stating they would not sign onto the MOA. 


Exempt wells continue to proliferate in many counties around the state with virtually no oversight.  Counties continue to refuse to take responsibility for investigating water availability and closing areas to new development, even when water resources are clearly over-allocated.


Documents (click for pdf)


1) Ecology-County draft Memorandum of Understanding

2) County MOA rejection survey


Stock Watering.  In 2005 Attorney General Rob McKenna issued a formal opinion that the quantity of water that can be withdrawn from an exempt well for livestock water supply is unlimited.  As a result, industrial animal feedlots can now abuse the exemption to withdraw large amounts of water without any permit or consideration of impacts to the environmental or other water users.


CELP has joined with Five Corners Family Farmers and Sierra Club to challenge the AG Opinion, and our case is pending in Franklin County Superior Court (hearing expected in early 2010). 


The Washington Legislature appointed an interim Stockwater Working Group to examine the issues and make recommendations for the 2010 session. 


Documents & Links: 

oThe Unsustainable Stockwater Exemption,” Rachael Paschal Osborn, (AWRA-WA Newsletter, July-Oct. 2009)

oCELP, Stockwater-Exempt Wells

oFive Corners Family Farmers website

oWashington Legislature Stockwater Working Group website


Lawn & Garden Watering.  As with stockwater, Attorney General Rob McKenna has issue an opinion stating that exempt wells may be used in unlimited quantities to water a “half-acre non-commercial lawn or garden.”  Again, lack of comma is the crux of the logic and again, there is no reference to other parts of the statute or legislative history.  This opinion, issued on September 21, 2009, was done at the request of Kittitas County, which is resisting putting limits on exempt well use.  As a result, Ecology has issued an emergency rule completely closing the basin.  See our Kittitas Exempt Well webpage for more info.


Water Reserves.  Ecology has incorporated water “reserves” for new exempt wells into several instream flow rules.  This has the effect of allowing protected instream flows to be depleted by future out-of-stream water uses, regardless of impact.  Examples include the new Wenatchee and Walla Walla water management rules.  The out-of-stream reserve in the Skagit water management rule has been challenged by the Swinomish Tribe and the case is pending in Thurston County Superior Court.


In September 2009, Rob McKenna issued another AG Opinion finding that Ecology lacks authority to use water management rules to limit the 5,000 gpd quantity available by statute to exempt wells.  However, the AGO finds that Ecology does have authority to close basins to all new wells, as it has done in upper Kittitas County (as petitioned for in 2007 by Aqua Permanente and CELP).


Documents & Links:

1)AG Opinion on Ecology authority to limit exempt wells and close basins (scroll to AGO 2009 No. 6 (Sept. 21, 2009)

2)CELP, Kittitas County Exempt Well Website

3)Swinomish Tribe Petition for Review



Adjudications.  Washington does not include exempt wells in general stream adjudications.  Hence, the costly and time-intensive adjudication process results in an incomplete final decree, and Ecology lacks the information it needs to enforce against exempt wells that impair other water rights or harm instream flows.



  Exempt Well Links:

Stockwater, Exempt Wells, and the Lawsuit

Kittitas County Exempt Wells

Five Corners Family Farmers

CELP May 2008 Workshop:  Proceedings on Exempt Wells


stockwater.htmlhttp://www.celp.org/kittitas/petition/overview.htmlhttp://www.waterplanet.ws/fivecorners/familyfarmers/home.htmlhttp://www.celp.org/kittitas/conference/proceedings.htmlhttp://www.celp.org/kittitas/conference/proceedings.htmlshapeimage_5_link_0shapeimage_5_link_1shapeimage_5_link_2shapeimage_5_link_3shapeimage_5_link_4

Currently more than 7,000 permit-exempt wells are being drilled EACH YEAR in Washington state.  Exempt wells are fueling rural sprawl, and used in unlimited quantities for feedlots and dairies.  Because these wells are not subject to regulation, there is no control over when and where they are drilled.  There is also no control over the impact of these wells on other water users and on hydraulically connected streams.


Counties have the power to determine that water is not available for new subdivisions and building permits.  But they are generally unwilling (with a few exceptions) to exercise this authority.  Thus, rampant new development is being built on exempt wells without oversight or consideration of public interests.

click on graph and maps to enlarge


         Exempt Wells:  Overview