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Proceedings

Citizens Workshop on Exempt Wells

Panel 4:  Legal Issues

Water Laws & Land Use

1. -Patrick Williams, Center for Environmental Law & Policy
   

1. -download: 
   

                    (1)  WRIA Rules overview  (pdf)

                    (2)  Methow River watershed case study  (pdf)

                    (3)  Skagit River watershed case study  (pdf)

The watershed plans and rules associated with management of watersheds are controversial.  Once an instream flow level is adopted it is treated like any other water right and given a priority date.  Any water right issued or appropriated after the instream flow is set is subject to curtailment if the flow levels are not met.  Conversely, the instream flow is subordinated to all previously issued water rights.  Recently, Ecology’s practice is to include a reservation of water in the instream flow rule, to allow for future water withdrawals and appropriations that are not subject to the instream flow.  These reservations allow continuing development of exempt wells in watersheds that are otherwise over-appropriated.

In 1976, the Methow watershed was the first to adopt instream flow requirements and a reservation of water for future out-of-stream uses.  Unfortunately, the rule did not include a mechanism to track withdrawals from the reservation making accounting very difficult.  In 1990 Ecology attempted to ascertain how much water had been allocated in the basin post-rulemaking, and concluded that some subbasins had likely exhausted the reservation.  However, land development and exempt well use has continued. The finite water held in the reservations have not deterred land use in the basin and Ecology has taken no action to prevent continuing construction of exempt wells.

The more recently adopted rule for the Skagit River basin also contains a future water reservation.  However, this reservation was creating through an Ecology policy to allow harm to instream flows if it is clearly in the “overriding consideration of public interest” (OCPI).  This is significant as OCPI was historically used in an emergency, such as drought or fire protection purposes.  It now appears that Ecology is utilizing OCPI as a long-term water management tool.  Land use decisions in the Skagit watershed do not appear to hinge on the limited reservations established by the rule.  Crafty accounting and assumptions (e.g. regarding septic system return flow) make it likely that exempt well growth will continue to fuel land use in the basin.

Patrick Williams is Staff Attorney for CELP.  He is a graduate of Golden Gate University School of Law.  Since joining CELP in 2006, Patrick has worked extensively on FERC hydropower dam relicensing, instream flow rules, commenting on both federal and state rules, and helping grassroots organizations with water resource issues

Land Use Laws & Water

- Tim Trohimovich, Futurewise

- download:  Power Point  (pdf)

The Comprehensive Planning Process (CPP) authorized by Washington’s Growth Management Act (GMA) is a tool that citizens and organizations can use in order to manage land and water use by enforcing the rules and regulations promulgated by the CPP.  The GMA does require that local governments consider water availability during the planning process and during a subdivision or building permit application process.  When a community decides on its Comprehensive Plan, they must deal with water resources and should always match water resources to the growth that is expected. 

Zoning laws should be viewed as a way to ensure an equitable distribution of development rights, but there are many loopholes available to developers of large subdivisions. While the framework exists for local officials to consider water availability when making both general and specific land use decisions, many lack the political will to do so.

Tim Trohimovich is a Land Use and Environmental Planner and Attorney for Futurewise.  He earned his Bachelor's degree with a double major in Political Science and Urban and Regional Planning and holds a JD from Lewis and Clark Law School, with a Certificate in Environmental Law.  He is licensed to practice law in Washington and Oregon and is a member of the American Institute of Certified Planners.  Tim is one of the attorneys representing Futurewise, Kittitas County Conservation, and RIDGE in appeals of Kittitas County's comprehensive plan and development regulations that are addressing the conditions under which exempt wells can be used to provide water for rural subdivisions.  Tim and Futurewise work on land use plans, regulations, and issues that affect surface and ground water quality and quantity throughout Washington State.

Panel 5: Agency Perspectives