Well driller near Ellensburg

Photo:  Mike Siegel, Seattle Times.

Click on image for full story.

Spawning salmon  In April 2008, the Department of Ecology and Kittitas County entered into a final Memorandum of Agreement (MOA) that essentially guarantees water to new developments, without any requirement of mitigation or protection for existing water users or stream flows. 

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.

Judge issues landmark decision on municipal water law

Decision impacts WSU, municipal water rights across the state

On June 11, a state judge struck down key parts of a water law that would have allowed drastically expanded water use for development. The law, passed in 2003, redefined private developers as municipalities and retroactively allowed developers and municipalities to increase their use of water under old water rights at the expense of other water users and rivers and streams.

This ruling affects every water right holder who has a certificate based on system capacity or “pumps and pipes” instead of actual use. Judge Jim Rogers of the King County Superior Court held actual use of water is the standard in Washington. Any water right based on pumps and pipes is now suspect.

For example, Washington State University holds substantial "paper" water rights based on the pumps and pipes standard; about two-thirds of WSU's water rights have never been used.  Under the court's ruling, WSU's unused water rights are no longer valid.  The University is mining the Grande Ronde Aquifer -- sole source of water for 50,000 people -- in order to irrigate its new 18-hole golf course, harming other well owners, the community, and the aquifer.  (Click here for more on the WSU water rights challenge.)

Judge Rogers held that two sections of the municipal water law were unconstitutional. The first section redefined “municipal water suppliers” to include many private developers, granting them the special rights under the water code previously reserved to public entities. The second section revived water right certificates that had been issued to developers and cities based on the size of the pumps and pipes of their water systems rather than on the actual amount of water they used. In 1998, the Washington Supreme Court invalidated those certificates, but in 2003, the Legislature attempted to reinstate them.  Judge Rogers held that law is unconstitutional.

Municipal water rights, like every other water right, are subject to legal tests intended to protect senior water users and the environment.  With this ruling, we can finally evaluate paper water rights under these legal tests and ensure orderly and responsible development of state water resources.  If water right holders fail the test, then they lose the right.

In challenging the law, CELP joined with Sierra Club, Washington Environmental Council, Puget Sound Harvesters, six western Washington tribes and several individual water right holders.  CELP and its co-plaintiffs are represented by attorneys Shaun Goho and Kristen Boyles of EarthJustice.  For more information, click here.

Citizens workshop on exempt wells