Upper Kittitas Ground Water Rule - Archive

September 10, 2007 to December 21, 2010

Ecology News Release - February, 11, 2010  Suncadia water-rights OK’d for water-banking program.  YAKIMA – The Washington Department of Ecology (Ecology) has finalized a large water-right transfer in upper Kittitas County that paves the way for hundreds of groundwater users to receive coverage under very senior water rights there.

Emergency Rule Extended

Rule Proposal Notice

Washington Supreme Court - Kittitas Co. et al. v. Eastern Washington Growth Bd. et al.

Briefs filed by the Appellants, Kittitas County and the Building Industry Association of Washington (BIAW), and the Respondents, Kittitas County Conservation, RIDGE, and Futurewise:

A significant decision has been issued July 28, 2011 by the Washington State Supreme Court related to local governments’ and Ecology’s roles vis-à-vis subdivisions of land and permit-exempt well groundwater uses:

Communications

Ecology Letter to Kittitas County Commissioners re: Inter-Agency (Ecology/USGS) Agreement for the Upper Kittitas County Hydrogeology Study - August 12, 2010

Ecology letter of response to Kittitas County Board of County Commissioners - July 26, 2010

Kittitas County Board of County Commissioners letter sent to Ecology - July 20, 2010

Editorial: Money remains solution to water rights problems July 21, 2010, Ellensburg Daily Record

Ecology response to Kittitas County Public Health Department - June 25, 2010

Kittitas County Public Health Department letter to Ecology - June 14, 2010

Letter from Ecology Director Ted Sturdevant to Representative David Taylor, 15th District - May 25, 2010

Letter from Representative David Taylor, 15th District to Ecology Director Ted Sturdevant - May 10, 2010

Letter from Ecology Director Ted Sturdevant to Kittitas County Board of Commissioners - May 6, 2010

Letter from Kittitas County Board of Commissioners to Ecology Director Ted Sturdevant - April 15, 2010

Governor Gregoire's response letter to the Kittitas County Commissioners request to repeal the emergency rule - April 6, 2010

Yakima Herald-Republic - Gregoire stands by ban on new wells in Kittitas County  April 7, 2010

The Center for Environmental Law and Policy and Aqua Permanenté letter sent to Governor Gregoire in support of Ecology's Emergency Closure Rule for Upper Kittitas County - April 2, 2010

Kittitas County Commissioners letter sent to Governor Gregoire seeking repeal of the current emergency rule - March 30, 2010

Comments received after the April 5, 2010 Yakima Water Transfer Working Group presentation by Ecology's Central Regional Office Director, Tom Tebb

The archived information is provided as a historical collection and is not being updatedThe information on this page includes the history of the emergency rule and emergency rule extensions between September 10, 2007 to December 21, 2010, the Attorney General Opinion (AGO), and the Memorandum of Agreement.  There is also additional information going back to the September 10, 2007 petition filed by Aqua Permanente.

Upper Kittitas Ground Water Rule - Chapter 173-539A WAC

The Department of Ecology is proposing to adopt a new rule for managing underground water resources in upper Kittitas County. The proposed ground water rule was published in the Washington State Register on July 7, 2010.

The proposed Upper Kittitas Ground Water Rule (Chapter 173-539A WAC) is based on comments received in response to a rule proposed by Ecology in January 2009, and on-going communications regarding the emergency rules now in effect since July, 2009.  These communications have been with the general public, Kittitas County Board of Commissioners, United States Bureau of Reclamation, Yakama Nation, Roza Irrigation District, Kittitas Reclamation District, Town of Roslyn, Center for Environmental Law Policy/Aqua Permanente, and other water right holders in the basin.

Ecology has issued a Determination of Nonsignificance (DNS) under the State Environmental Policy Act, a Small Business Economic Impact Statement (SBEIS), and a preliminary cost-benefit analysis.

The purpose of this rule is to withdraw from appropriation all unappropriated groundwater within upper Kittitas County pending the completion of a groundwater study.  The withdrawal rule allows new appropriations of groundwater in two cases:

The withdrawal of all unappropriated groundwater is designed to prevent new uses of water that would negatively affect flows and existing water rights in the Yakima River and its tributaries.  This proposed rule, like the current emergency rule, requires that new developments relying on groundwater would have to demonstrate water budget neutrality in order to be approved.  Ecology held an open house and public hearing on July 28, 2010.  The comment period ended August 25, 2010.

Ecology’s response to comments

All of the comments received by Ecology will become part of the official record (Concise Explanatory Statement).  The Concise Explanatory Statement is required by the Administrative Procedure Act (RCW 34.05) and is published after the rule is adopted.

Expected adoption date

Ecology expects to adopt this rule no earlier than October 2010. 

Ecology issues a ninth emergency rule

An emergency groundwater management rule in Upper Kittitas County has been extended one more time.  Meanwhile the Department of Ecology (Ecology) is working to complete the process for establishing a final groundwater regulation that will be in place until more is known about the aquifers there.

Ecology recently signed a contract with the U.S. Geological Survey (USGS) to perform a study of the upper county bedrock aquifers to learn how new groundwater pumping in these areas would affect upper valley tributary streams. The proposed final rule will remain in place until the USGS study is completed.

Ecology initiates an eighth emergency rule

Ecology Director Ted Sturdevant has extended the current emergency groundwater rule for upper Kittitas County.  The emergency rule becomes effective on July 21, 2010 and is in effect for up to 120 days.

Ecology initiates a seventh emergency rule to impose limits on new groundwater uses within upper Kittitas County.  The emergency rule is effective March 23, 2010 and expires on June 23, 2010

On March 23, 2010, Ecology Director Ted Sturdevant extended the current emergency groundwater rule for upper Kittitas County.

Chapter 173-539A WAC is in effect for up to 120 days and does not apply to people with vested building permit applications or those issued building permits in the upper county as of July 16, 2009.  The emergency rule further clarifies what building permits associated with existing, but not yet completed, “group” withdrawals may be allowed under the emergency closure.

New groundwater pumping is allowed under the extended rule when the new use is fully mitigated.  Mitigation can generally be achieved by acquiring and transferring or retiring another existing water right from the same water source to offset a new use.

The rule establishes a pathway for developers, contractors, and/or individuals to construct water budget neutral projects by identifying water rights that can be placed into the trust water right program to offset their consumptive use of groundwater.

The emergency rule also addresses:

Additional information:

Attorney General Opinion (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.

Ecology to clarify Kittitas groundwater rule, plans to rejoin Kittitas commissioners in exempt well talks

On July 16, 2009, the Department of Ecology filed a temporary, emergency rule that closed northern Kittitas County to all new groundwater withdrawals.  Ecology closed the upper basin to new withdrawals after two years of negotiations with the Kittitas County Board of Commissioners.  After nearly two years of negotiations, Ecology was unable to gain a commitment from the Kittitas County Board of Commissioners that they were willing to move forward with a memorandum of agreement and alternative rule approach that would have limited the uncontrolled proliferation of so-called “exempt groundwater wells” in upper Kittitas County.

The temporary, emergency rule will be in place for a maximum of 120 days in upper Kittitas County.

Ecology withdraws rule proposal

On July 7, 2009, Ecology filed a withdrawal notice on a rule proposal that was filed on January 7, 2009.  The agency has decided to withdraw this rulemaking due to the following:

Proposed Rule-making

February 2009

Two public hearings were held on February 11 and 12, 2009 to provide information about the management of exempt groundwater wells in Kittitas County.  Ecology representatives were available to answer questions at both hearings. 

The comment period closed on February 20, 2009.  Thank you to everyone who commented on the proposed rule.

January 2009

Chapter 173-539A WAC Management of Exempt Ground Water Wells in Kittitas County - Includes links to the:

Additional information:

September 2008

Two open house sessions were held in September 2008 to discuss the Management of Exempt Groundwater Wells in Kittitas County.  The new permanent rule proposal for managing undergroundwater resources in northern Kittitas County was the topic of these sessions. Comments were accepted at the sessions, via e-mail, and from an online form.  Comments were also collected at two open houses in March 2008.

Emergency rule adoption

March 2009

On July 8, 2008, Ecology adopted an Emergency rule to implement the exempt well management measures identified in a Memorandum of Agreement (MOA) with Kittitas County.  The Emergency rule continues to be in place while the agency moves forward with work towards the adoption of a permanent rule.  A third Emergency rule has been adopted by Ecology as a placeholder for a permanent groundwater management rule.  The emergency rule incorporates some recommendations made during a comment period held in February regarding a permanent rule.

Emergency Rule Adoption #3 for Chapter 173-539A WAC Management of Exempt Ground Water Wells in Kittitas County - includes links to:

Ecology News Release - March 16, 2009 Temporary rule in place while Ecology seeks to resolve Kittitas groundwater management concerns

Ecology News Release  - March 3, 2009 Ecology seeks negotiations with Kittitas County to resolve disagreements over groundwater rule

November 2008

Ecology adopted a second Emergency rule on November 6, 2008, to implement the exempt well management measures identified in a Memorandum of Agreement (MOA) with Kittitas County.  The first emergency rule expired on November 5, 2008.  The Second Emergency rule will be in place while the agency moves forward with the adoption of a permanent rule.

Emergency Rule Adoption #2 for Chapter 173-539A WAC Management of Exempt Ground Water Wells in Kittitas County - includes links to:

July 8, 2008

Ecology adopted an Emergency rule that establishes a partial withdrawal of groundwater within a portion of WR1A 39 in Kittitas County, WA for the purpose of implementing a Memorandum of Agreement (MOA) entered into with Kittitas County on April 7, 2008.

The emergency rule provides groundwater use provisions for:

The emergency rule also addresses issues such as:

Emergency Rule Adoption for Chapter 173-539A WAC Management of Exempt Ground Water Wells in Kittitas County - includes links to:

While the Emergency rule is in place rulemaking will move forward on the adoption of a permanent rule. The CR101 for the permanent rule was filed along with the first Emergency rule on July 8, 2008.  The new rule would make permanent a temporary emergency rule now in place.

Kittitas County Water Petition Background - Ecology has concerns

Ecology received a petition in September 2007 from water right holders in Kittitas County seeking a temporary moratorium on new groundwater wells in Kittitas County.  The petitioners are members of a group called Aqua Permanente who are concerned that rapid rural residential growth will impair senior water rights and stream flows in the Kittitas and Yakima valleys.  Of particular concern is the proliferation of so-called "exempt wells" which do not require a water right permit from Ecology.  The petitioners wanted the moratorium to stop the practice of some developers who are drilling multiple exempt wells to serve multi-home subdivisions.

Ecology hosted two “listening sessions” on the exempt well issue in Ellensburg and Cle Elum and consulted with local governments, Indian tribes, legislators and land owners before making a decision by November 9, 2007.  Even before receiving the petition, Ecology had cautioned county officials about the large number of wells being drilled and the rate at which new subdivisions are being approved in Kittitas County that rely on the exempt well provision.

“I am concerned that the current pattern of subdivision approvals and drilling exempt wells is not sustainable,” said Ecology director Jay Manning.

Manning noted the Yakima River basin is one of the state's most water-short areas.  Twice in the past seven years, surface water rights with priority dates as old as 1906 have been shut off during droughts because senior water right holders were not able to divert water they are entitled to.  Homes and subdivisions extracting groundwater that flows into the Yakima or its tributaries could pose a risk to these senior water rights.

Similarly, these new groundwater withdrawals may interfere with river flows necessary to protect endangered or threatened salmon species.  Ecology is concerned that buyers of homes in new subdivisions that rely on so-called exempt wells may be at risk of having their domestic water cut off in future droughts.

Upper Kittitas County groundwater management agreement under consideration

The Washington Department of Ecology and Kittitas County prepared a draft memorandum of agreement that would guide how decisions are made on residential developments served by exempt wells until more is known about the aquifers and water supplies in northern Kittitas County.

Ecology, Kittitas County sign groundwater agreement

Ecology and Kittitas County have signed a groundwater management agreement that will guide how decisions are made on residential developments served by exempt wells.  Rapid growth in the county has resulted in a proliferation of the wells that are exempt from water right permits.  That spurred a citizens group to petition Ecology last year and seek a temporary moratorium on the wells.

As an alternative to the moratorium Ecology and the Kittitas County Commissioners negotiated the groundwater agreement over seven months and Ecology hosted four public meetings to address water supply issues in upper Kittitas County.

Memorandum of Agreement (MOA)

Memorandum of Agreement - Between Kittitas County and the State of Washington, Department of Ecology, Regarding Management of Exempt Groundwater Wells in Kittitas

On April 7, 2008, Ecology and Kittitas County entered into the MOA to cooperatively manage exempt groundwater wells until more is known about the aquifers and water supplies in northern Kittitas County.  The MOA establishes interim and long term management measures and calls for development of a comprehensive groundwater study and a permanent Groundwater Management Rule.

Draft Tentative Memorandum of Agreement

This Memorandum of Agreement (MOA) is intended to establish the basic principles Kittitas County (County) and the Department of Ecology will employ in order to exercise their respective authorities to regulate the use of groundwater in upper Kittitas County while parties sponsor a groundwater study in the area commonly known as "upper" Kittitas County.

Information leading up to the final MOA

Resources