Proposed Upper Kittitas Groundwater Rule - Questions and Answers

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Ecology has listed some commonly asked questions and answers regarding the proposed Upper Kittitas Ground Water Rule.  These are not intended to be an exhausted list of every question that might come up in the basin regarding the rule, but rather some answers to provide clarity surrounding the proposed rule.  Please see the contacts at the bottom of this page if you would like to discuss any of the questions further.

Q.  Why are new groundwater withdrawals a concern in Upper Kittitas County?

A.  Groundwater aquifers feed the Yakima River and its tributaries year round.  Pumping from those aquifers diminishes stream flows relied upon by senior surface water right users and reduces legally required flows for fish. Groundwater withdrawals in Upper Kittitas County intercept these water supplies where they begin at the headwaters of the Yakima River, preventing the water from reaching farms and cities downstream that rely on this water for their livelihoods.

In addition, information is lacking about groundwater resources in the upper bedrock areas of the county where land-use changes relying on permit-exempt wells is occurring.  This lack of data hampers the Department of Ecology’s ability to make sound water management decisions there.

Allowing new withdrawals that likely deplete an already over-committed water supply is unfair to senior water right holders, harmful to the water-dependent economy and fish runs, and bad public policy.  Protecting these resources preserves $1.5 billion agricultural economy in Kittitas, Yakima, and Benton counties and protects those who have a right to the water first.

Ultimately, the best insurance policy is for water users to obtain coverage under a senior water right.  Development may proceed where water withdrawals are mitigated. Water supplies will remain intact during years of drought when other unmitigated water use may be limited or completely curtailed.  New developments whose water use is supported by mitigation from senior rights will be of greater value than those not supported by mitigation.

Q.  What is the legal basis for Ecology’s rule halting new groundwater appropriations?

A.  The agency has the authority to halt new appropriations of groundwater, including withdrawals under the permit exemption when it lacks adequate information to support sound water management decisions.  The withdrawal may remain in place until sufficient information is available to make those decisions. RCW 90.54.050 (2).

Because of the increased development of new groundwater uses in upper Kittitas County, coupled with concerns related to total water supply and drought in the Yakima Basin and the uncertainty about groundwater aquifers in the upper county, Ecology has halted new groundwater withdrawals that aren’t backed by an existing senior water right.

A study will begin soon to analyze the hydrogeology of the areas where more information is needed to make sound water resource decisions in the upper county.

Q.  Why is this rule limited to Upper Kittitas County?

A.  Ecology’s rule seeks to address a specific and immediate situation where intense land use development is occurring high in the watershed.

From 2003-2007, Kittitas County created thousands of lots in subdivisions on former railroad and forest land that historically didn’t carry water rights.  Development of these subdivisions impacts the headwaters of the Yakima River, sensitive areas with critical habitat for resident and anadromous fish.

When considering land-use applications, the county is required to perform an environmental review under the State Environmental Policy Act (SEPA) and make sure water is available to support new developments under the state’s Land Use Subdivision law and the Growth Management Act.

As part of that SEPA review, Ecology submitted comments to the county on hundreds of land-use decisions, raising concerns about the potential environmental impacts to the area watershed from new unmitigated water uses.  Consistently over the years, Ecology advised the county that large developments were not eligible to rely on the authority of the permit exemption to establish new ground water uses.

In particular, Ecology pointed to the State’s Ground Water Code (RCW 90.44.050) and a 2002 State Supreme Court decision (Campbell & Gwinn) that interpreted the exemption from permitting for group domestic uses.

Despite these large developments’ intent to use water without the legal authority to do so, Kittitas County nonetheless granted land use approval to these developments.

Unlike many developing areas within the Yakima basin, the subdivisions approved in the Upper Kittitas are often situated far upstream of historically irrigated lands and their associated diversion, storage, and conveyance works.  Opportunities to acquire and retire a water right are generally located some distance downstream.

The result is an unmitigated stream flow reduction between the location of the new subdivision and the location of the acquired water right that would serve as mitigation for the consumptive impact of the subdivision.  These unmitigated flow reductions can harm fish and fish habitat.  And, in basins like Big Creek, the Teanaway River, and Swauk Creek, it would mean senior rights are interfered with during the latter parts of the irrigation season.

Q.  What prompted the agency to implement an emergency rule?

A.  In 2007, Ecology received a petition seeking unconditional withdrawal of all unappropriated ground water in Kittitas County until enough is known about potential effects from the development of new groundwater uses on senior water rights and stream flows.

Ecology consulted with the appropriate legislative committees on the petition and proposed withdrawal. Ecology rejected the proposed unconditional withdrawal, and instead signed a memorandum of agreement (MOA) with Kittitas County. Based on that MOA, Ecology proposed a rule in January 2009 that would have allowed for the development of some limited new groundwater uses.

Subsequently an opinion from the Attorney General’s office concluded that Ecology lacked the legal authority to take the approach that allowed some limited new groundwater uses. However, the opinion confirmed Ecology’s legal authority to withdraw a water source from all new water uses, unless mitigated.  Given Ecology’s concern about the pressure on the system from the development of new water uses, particularly at the headwaters of the basin, Ecology exercised its authority to withdraw the Upper Kittitas groundwater from all new groundwater withdrawals unless mitigated.

Q. How does the exemption from permitting fit into Ecology’s action?

A.  Ecology’s current rule regulates all new uses of groundwater, not just permit-exempt uses.  However, because new development of groundwater in recent years has occurred primarily under the legal authority of the permit exemption, the “on the ground” effect of the withdrawal is to curtail such development unless backed by senior rights.

Where a basin can no longer support new water uses, Ecology is authorized to ban the development of new groundwater uses, whether those uses are under a permit, or exempt from the permit requirement.

Under state law, groundwater pumping is allowed for some uses without first obtaining a water permit.  Those “permit-exempt” uses are limited to a maximum of 5,000 gallons per day for single or group domestic use, 5,000 gallons per day for industrial use, up to ½ acre of non-commercial lawn and garden watering, and for stockwatering.

New groundwater uses developed under the permit exemption are still subject to the doctrine of prior appropriation – first in time, has first in right – and a court or senior right holder may take action to restrict their use if they are taking water out of turn.

Q. How can I protect my investment and develop my property with this rule in place?

A.  Landowners may obtain a share of a permanent senior water right and a certificate of “water-budget neutrality” through several water banking programs serving Upper Kittitas County.   Permanent water right coverage also may be gained by changing and transferring the use of an existing water right to a new property through an application process with Ecology or the local Kittitas County Conservancy Board.

Water rights obtained through water banking programs are put into trust and the water remains in stream to offset any groundwater pumping associated with your property.  A water-budget neutral determination certifies your withdrawal will not harm the “Total Water Supply Available” for basin irrigators, senior water users – cities and communities – and the Yakama Nation fisheries enhancements and streamflows.

More information about the Upper Kittitas Water Exchange is available online at:

Obtaining a water-budget-neutral determination or coverage under a water right that predates May 10, 1905, protects your groundwater withdrawals from curtailment in times of water shortage.  This adds tremendous value to your property and protects you from court orders and potential litigation from more senior water users.  Unmitigated groundwater users are at risk of both expensive litigation and curtailment of their water use.

Q.  When will the groundwater study start in the Upper County?

A.  In response to the urging of area citizens and in light of current budget constraints, Ecology plans to have a contract in place with the U.S. Geological Survey by Sept. 30, 2010, to begin a study of the Upper Kittitas County aquifers.  The study will define the hydrogeology of areas in upper Kittitas County not covered by other USGS work.  It will provide information regarding ground water occurrence and availability, document the extent of ground water and surface water continuity in the study area, and determine the extent of potential impairment resulting from exempt well use.

Currently, new unmitigated groundwater withdrawals are halted until more is known about the aquifers in the upper county.  Rulemaking is underway to make the regulation permanent while the study is under way.

In 2009, the Legislature authorized $700,000 to conduct studies for areas in Upper Kittitas County where information about the aquifers is lacking.  During the 2010 legislative session a budget proviso was adopted that would have allowed some or all of the money designated for the groundwater study to be used to develop a Domestic Water Reserve Program (DWRP) to obtain water to offset impacts from existing and future groundwater uses.

The county and Ecology have been exploring DWRP options, but we agree the money should be used to start the study as soon as possible.  We will continue to pursue creative options, such as buying or leasing water during drought years to offset groundwater use, through other appropriate channels like the Yakima River Basin Water Enhancement effort.

Q.  Isn’t groundwater a concern in the entire Yakima basin?

A.  Because groundwater and surface water resources are intrinsically connected, water managers have been concerned about both surface water and groundwater supplies for the entire Yakima Basin for many years.

In fact, new groundwater right permits haven’t been issued in the basin in nearly 20 years.  Existing surface and groundwater rights may be and are routinely changed and transferred to new uses. This allows for development to continue, although new rights aren’t being granted.

In the early 1990s, the Yakama Nation challenged the issuance of new groundwater permits to a number of orchardists in the Moxee Valley.  The case established the threat groundwater pumping may have on surface water supplies.

In the wake of this case, the state, U.S. Bureau of Reclamation and the Yakama Nation agreed to manage water resources conservatively in the Yakima River Basin. In 1999, Ecology imposed an administrative moratorium on issuing groundwater permits for new consumptive uses.  The moratorium did not apply to permit-exempt wells.

At the same time, the parties contracted with the U.S. Geological Survey to conduct an extensive groundwater study and develop a model demonstrating how groundwater moves from aquifer to aquifer and how it interacts with the Yakima River.  This study covers a majority of the Yakima Basin, including much of Kittitas County.

Groundwater management in the Yakima Basin will rely on the scientific integrity of the USGS project. The model will provide a mechanism for determining when, where and how much groundwater pumping impacts surface water.  This will provide a formula for how groundwater users can provide mitigation for groundwater withdrawals.

The completed report and computer model is expected to be released soon.  Ecology expects to brief state and elected officials soon and engage stakeholders and the greater population before implementing a groundwater management plan here.

Funding has been authorized by the Legislature to conduct studies for areas in Upper Kittitas County that aren’t covered in this otherwise comprehensive state-of-the art study.  Other areas of the upper and lower Kittitas County are covered in this report and the interaction between surface water and groundwater is well established.

Additional storage to supplement existing surface water shortfalls and to account for current and future growth in the basin is a key component of the Yakima River Water Enhancement effort currently under way.  That panel expects to make project and funding recommendations to the governor and Congress by the end of 2010.

Until additional water storage is available, the best insurance policy is for water users to obtain coverage under a senior water right.  This will provide them the assurance their water supplies will remain intact during years of drought when water may be rationed or curtailed to other users, hence adding immeasurable value to their property. 

Q.  What is the back story on water in the Yakima River Basin?

A.  To put this in context, it is important to understand the history of water in the Yakima River Basin and the basic tenet of Western Water Law, where the first in time, has first rights.

Surface water not fully appropriated or spoken for by May 10, 1905, was claimed by the U.S. Bureau of Reclamation to support its extensive Yakima Basin agricultural irrigation project, as authorized by Congress.  The Yakima Basin Project relies on surface water stored in five Reclamation reservoirs and the recharge from snowmelt and connected underground aquifers to supply water to its thousands of irrigation customers.  This water supply supports the $1.5 billion agricultural industry encompassing Kittitas, Yakima and Benton counties.  The economic benefits of these farms are threatened when water supplies run short.  In addition, the Yakama Nation has time immemorial rights connected to their usual and accustomed hunting and fishing grounds, and rights related to streamflows supporting those fisheries.  Stream flows must be maintained at a level to support fish as ordered by state and federal courts and as mandated by Congressional act.

These rights have been adjudicated and confirmed in Superior Court under the priority system: those with the oldest water rights, predating 1905 are considered senior water rights.  Those dating after 1905 are junior and may be limited or curtailed in low water years or during drought.  Junior water users include all exempt well users after May 10, 1905.

Contact

Ecology WRP Help Desk
Department of Ecology, CRO-WR
Phone: 509 575-2597