Nookachamps Creek

(Mt. Vernon in the left lower corner.) 

A “reserve” for future water allocations via “exempt wells” threatens stream habitat and water quality.   (Google Earth)

Exempt wells were originally intended to serve rural family farms.  But as those farms get 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

Additional links:

1. -Five Corners Family Farmers
   

2. -CELP letter to Franklin County
   

3. -Exempt Wells Overview
   

4. -Conference Proceedings on Exempt Wells
   

Washington’s domestic well exemption includes an allowance for stockwatering.   The exemption allows use of up to 5,000 gallons per day for rural homes.  Part of that quantity may also be used to supply water for family livestock. 

In 2005, at the request of Senator Bob Morton (R-Orient) and Janea Holmquist (R-Moses Lake), Washington Attorney General Rob McKenna issued a controversial opinion that the stockwatering exemption allows unlimited use of exempt wells to water livestock in unlimited quantities.   In other words, exempt wells may be used for industrial dairies, feedlots, and CAFOs (Concentrated Animal Feedlot Operations), regardless of how much water is used.  The AG opinion conflicts with the original policy of the Department of Ecology and an administrative court case (DeVries v. Ecology, PCHB No. 01-073 (9/27/01)) in which the state water court (the Pollution Control Hearings Board or PCHB) ruled that the water right permit exemption could NOT be used in unlimited quantities for an industrial dairy. 

2005 AG Opinion No. 17 rationalizes the unpermitted use of millions of gallons of water per day in dairies or feedlots on the placement of a comma in the statute.   The opinion completely fails to consider legislative history and the rule that exceptions to the water code (i.e., all proposed water uses must first to obtain a permit) must be construed narrowly.  

In May 2008, University of Washington Law Review published an article by Kara Dunn criticizing the 2005 AG Opinion. 

Dairies and feedlots in eastern Washington are beginning to pop up, pumping large quantities of water without a permit.  For example, the Watts Brother Dairy in Benton County, which was recently acquired by agricultural giant ConAgra uses unpermitted wells to serve 2,200 dairy cows, using at least 77,000 gallons of water per day for the cows.  Thomasson Double T Dairy, near Mesa in Franklin County, uses unpermitted wells to supply water to 400 cows. 

Most recently, Easterday Ranches has proposed to build a 30,000-head cattle feedlot near Eltopia (north of Pasco), based on exempt wells.  Water usage is expected to approach 1 million gallons per day or more in this extremely hot and arid dryland farming country.  

Counties are happy to certify that use of exempt wells provides adequate water for these operations, even though the water usage is unpermitted.  Meanwhile, the Department of Ecology is unable to do anything other than warn against impairment of other water rights and instream flows.   (See, for example Watts Brother letter, Mesa Dairy letter).  Because the AG Opinion is written by their own attorneys, Ecology has declined to take action to control or prevent this new form of abuse of 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.

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