11/09/2016 - A new Washington Supreme Court case impacts permit-exempt well use statewide. Updates to this web page are currently underway. For more information, see: Understanding the Whatcom County vs. Hirst, Futurewise, et al. decision
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 groundwater. The groundwater permit exemption allows the users of small quantities of groundwater to construct wells and develop their water supplies without first obtaining a water right permit from Ecology.
The only exceptions to the permit requirement is for withdrawals of groundwater for:
The statute, RCW 90.44.050, authorizing exempt wells was originally included in the Groundwater 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 groundwater withdrawals don’t require a water right permit, to the extent the groundwater is beneficially used, the water user withdrawing groundwater 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 groundwater withdrawals.
One groundwater 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. For example, under the Exemption, a project that includes multiple homes, such as a small subdivision, can legally use the Exemption as long as the homes collectively will use no more than 5,000 gpd for their domestic water needs. Still, in some cases, a small proposed development—or even a single home—can be considered part of a larger project requiring a water right permit. If so, the project cannot rely on using the Exemption. If the cumulative total of withdrawn groundwater for an industrial or domestic project exceeds 5,000 gallons a day, a water right is required.
Although permit exempt groundwater withdrawals don’t require a water right permit, to the extent the groundwater is beneficially used, the water user withdrawing groundwater 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 groundwater 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 groundwater 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.
Case Law regarding groundwater exemption:
Instream Flow Rulemaking - Groundwater 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 groundwater 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.
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