Washington Bans New Wells in Upper Kittitas County - Big Deal, Right?

This article by David Lester in the 16 July 2009 edition of the Yakima Herald-Republic caught my eye. The graphic is from the story.

Big deal, you say - the State of Washington is prohibiting new wells in some basin specifically, the Yakima Basin. In this case, it is a big deal, because the ban includes all new wells, including exempt (domestic) wells and other wells - ones that do not require a permit. 

That's a real stunner. The right to drill a domestic well is viewed by many Westerners as an inalienable right, or maybe the 11th commandment Moses brought down from Mt. Sinai: "Thou shalt not forbid anyone from drilling a domestic well for household, noncommerical use."

In Washington, a 1945 law states that a permit is not required for a domestic or industrial well that does not draw more than 5,000 gallons per day. Livestock wells are also exempt from permits but have no limits on how much they can pump.

The first three paragraphs from Lester's article:

 In a move unprecedented in its scope, the state Department of Ecology imposed an emergency rule Thursday that halts all development relying on new water wells in rural upper Kittitas County.

It's the first time the state has banned the drilling of new wells for private homes, watering livestock and industrial development-- all of which have been unregulated for 64 years and not required a state permit.

Ecology Director Jay Manning said he decided to impose the ban after two years of negotiations with Kittitas County commissioners broke down over a compromise that would have limited the amount of water available for rural developments.

Here is more information from the department.

The rule will remain in effect for 120 days. Some new uses will be allowed, as long as they are mitigated (offset), generally by obtaining and retiring or transferring another water right from the same source.

Why was this done? From the state's news release:

Since 1998, nearly 3,000 wells have been drilled in Kittitas County, prompting concerns that groundwater pumping in the headwaters region of the county threatens senior water users and streamflows in the Yakima Basin. A number of parties, including the citizens group Aqua Permanente, the Yakama Nation, and the city of Roslyn, have asked that Ecology close the groundwater to further appropriation while a groundwater study is completed.

And you can bet there are some who were not happy with the state's decision.

So here's the bottom line: senior water rights holders and streamflows were threatened by more wells in Upper Kittitas County.

Sound familiar? It should. Exactly one year ago today I posted about the Bounds case in New Mexico,  in which Horace and Jo Bounds claimed 45 exempt wells near their property were  impairing their senior water right. State District Judge J.C. Robinson declared unconstitutional a 1972 law that requires the state engineer to approve all requests for new home wells, regardless of the impact to senior water rights holders. The ruling holds only in Luna, Hidalgo, and Grant Counties in the southwest portion of the New Mexico - the three counties in the judge's district.

The case has been appealed but I have not been able to learn the result of the appeal. Some were betting that a higher court would toss out the ruling. If any of you know the outcome of this case, please post a comment.

Here is a guest post by Ray Walker on exempt wells and prior appropriation.

Let me repeat again - this exempt well business is going to get worse before it gets better. States are going to have to bite the bullet, face the music, fish or cut bait - choose your favorite aphorism.

Here in Oregon, the state still allows 15,000 gallons per day for a domestic exempt well - a ridiculously high amount (almost 17 acre-feet per year). The state has no idea how much water these wells really pump. That's no way to be good stewards of the state's water resources.

But the state did increase the exempt well fee to $300.

Don't get me started.

Update on 30 July 2011: Here is a story about a recent State Supreme Court decision slamming the county over water and exempt wells.

"They are throwing out the baby with the bath water." -- Dave Whitwill, government affairs coordinator for the Central Washington Home Builders in Kittitas County

Comments

[ClementsSANDRA28]

This is cool that we can take the home loans and it opens new chances.

[Paul Hirsch]

On Friday, July 24, the Department of Ecology announced it will be renewing talks with Kittitas County concerning its recently announced emergency rule.

Quoting Ecology:

'At the request of Gov. Chris Gregoire, Washington Ecology Director Jay Manning met with Kittitas County Commission Chair Alan Crankovich and, as a result, negotiations regarding an alternative groundwater management rule will recommence as early as next week.'

[Jan Sharar]

You still have the "right" to drill a replacement well. This ban does not apply to replacement wells. Plead your case to Region 2 DOE in Yakima. I suggest you talk to the water resources manager.

Kittitas County Resident

[Michael]

Dear Tom,

Thanks for commenting.

I am sorry to hear of your plight. I can't understand why you can't replace an existing exempt well. Doesn't seem fair at all.

[Tom]

I am a perfect example, where my exempt well has failed. I am trying to drill a replacement well and have been told "too bad."

I have done nothing wrong. I followed the laws, the rules, the process and live on the land and need the access to water.

Not allowing me access to a replacement well is offensive to everything American.

They are imposing an administrative rule to override the RCW's and that is an overstep of authorithy.

Unfortunately I cannot afford to take this to court and must wait at the mercy of others.

This ruling pushes me out another year before I can get water. You try living on 100 gallons a day on 5 acres!

[Water Damage Tampa]

Can not say whether a good move or not but there has been misuse in the past and too many of them without a cause.