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In Washington State, prospective water users must obtain authorization in the form of a water right permit or certificate from the Department of Ecology (Ecology) before withdrawing ground water.
The only exception to the permit requirement is for withdrawals of groundwater for:
The statute, RCW 90.44.050, authorizing exempt wells was originally included in the Ground Water Code in 1945 to allow small uses of water where community supply was not available. Currently exempt wells are legally used across the state to serve single homes, small developments, irrigation of small lawns and gardens, industry and stock watering.
Although permit exempt ground water withdrawals don’t require a water right permit, to the extent the ground water is beneficially used, the water user withdrawing ground water under the exemption establishes a water right that enjoys the same privileges as a water right permit or certificate obtained directly from Ecology. For example, an existing permit exempt right may not be impaired by a junior withdrawal.
Permit exempt water users do have the option of applying for a water right permit from Ecology even if their uses fall within the purposes and quantities listed above. For a permit to be granted, the application must pass the 4-part test in the same fashion as any other water right application.
Water use of any sort is subject to the "first in time, first in right" clause, originally established in historical western water law and now part of Washington State law. This means that a senior right cannot be impaired by a junior right. Seniority is established by priority date - the date an application was filed for a permitted or certificated water right or the date that water was first put to beneficial use in the case of claims and exempt ground water withdrawals.
One ground water exemption is allowed for any one project regardless of size. It is important to note that all wells for a given project apply toward the limits of the exemption. If you wish to develop land and supply the industrial or domestic development with water from several wells, all the wells of the development together must pump 5,000 gallons a day or less to be covered under this exemption. If the cumulative total of withdrawn ground water for an industrial or domestic project exceeds 5,000 gallons a day, a water right is required.
Although permit exempt ground water withdrawals don’t require a water right permit, to the extent the ground water is beneficially used, the water user withdrawing ground water under the exemption establishes a water right that is subject to the same privileges and restrictions as a water right permit or certificate obtained directly from Ecology. Although exempt ground water withdrawals don’t require a water right permit, they are always subject to state water law. In some instances, Ecology has had to regulate, stop or reduce ground water withdrawals when they interfere with prior or “senior” water rights, including instream flow rules.
Attorney General Opinions (AGO) regarding the groundwater exemption
On September 21, 2009, the state Attorney General's Office issued a formal opinion regarding the interpretation of statutes exempting certain withdrawals of groundwater from permitting requirements, and authorizing the Department of Ecology to withdraw waters from appropriation.
On November 18, 2005, the state Attorney General’s Office issued a formal opinion regarding how the groundwater exemption, especially for watering livestock, should be applied. In 1997, an AGO was issued regarding some general questions regarding permit exempt withdrawals.
Case Law regarding groundwater exemption:
Instream Flow Rulemaking - Ground water component
Instream flows have been established for many, but not all streams and rivers around the state. The term "instream flow" is used to identify a specific stream flow at a specific location for a defined time, and typically following seasonal variations. Instream flows are usually defined as the stream flows needed to protect and preserve instream resources and values, such as fish, wildlife and recreation. Instream flows are described and established in an adopted state rule and are considered water rights held by the state.
Depending on the specific language of an instream flow or closure rule, the provisions may or may not apply to permit exempt wells in the basin covered by the rule. Recent instream flow rules and amendments to existing rules allow the reservation of water for future small domestic groundwater withdrawals. In order to minimize the effects to fish resulting from reservation that are made senior to instream flows, reservations are ordinarily limited to specific areas and quantities. In these specific areas where the use of permit exempt ground water withdrawals is generally the only available water supply, an amount of water can be reserved and made available for those uses not limited by instream flow regulations. Each new exempt use is debited against the reservation and once the reservation is exhausted, no more exempt wells will be allowed within that defined area.
Because these reservations are considered senior to instream flows, the reservation places the risk on the fish and wildlife in a situation of shortage. Thus the amount of the reservation is generally limited to:
Reasonable limitations, especially metering and reporting, compliance with conservation standards, and monitoring and tracking the cumulative effects of the withdrawals are considered as reservations are established.
The Department of Ecology has approved the April 9, 2009, decision of the Franklin County Water Conservancy Board to transfer the former Pepiot water right to the Easterday Ranches Inc., feedlot northeast of Eltopia in Franklin County.
The 316-acre feet of water annually from the former Pepiot water right northwest of the feedlot will provide Easterday with 250 acre-feet of groundwater for dust control, stock cooling and other associated feedlot uses plus 66 acre-feet for stock drinking purposes.
Easterday intends to withdraw additional groundwater for stock watering at the feedlot under the state groundwater code's exemption from water right permitting for stockwatering purposes.
Ecology's approval of the water right transfer IS NOT an endorsement of Easterday's use of the stockwatering exemption. This page provides the background and examines the issues surrounding the use of the stockwatering exemption by commercial feedlots and others in Washington state. Ecology is currently seeking legislation to clarify the uses of the exemption.
Related Documents for the June 11 water rights decision
Washington State Well Log View and Report - A Well Log (Well Report) describes the location, ownership, construction details and lithology of a completed well. This web site enables you to search for wells which have well reports and to view the report using a variety of search tools.
Don Davidson
Water Resources Program HQ
P.O. Box 47600
Olympia, WA 98504-7600
Office: 360-407-6636
e-mail: ddav461@ecy.wa.gov
Copyright © Washington State Department of Ecology. See http://www.ecy.wa.gov/copyright.html.
