Exempt well issues in the West.

• Author: Bracken, Nathan
• Position: REPORT

EXECUTIVE SUMMARY I. INTRODUCTION II. STATUTORY AND REGULATORY AUTHORITY REGARDING EXEMPT WELLS AND EXEMPT WELL DRILLING A. Alaska 1. Exemption 2. Drilling B. Arizona 1. Exemption 2. Subdivisions 3. Drilling C. California 1. No Exemption 2. Subdivisions 3. Drilling D. Colorado 1. Exemption 2. Subdivisions 3. Drilling E. Idaho 1. Exemption 2. Subdivisions 3. Drilling F. Kansas 1. Exemption 2. Drilling G. Montana 1. Exemption 2. Subdivisions 3. Drilling H. Nebraska 1. Exemption 2. Drilling I. Nevada 1. Exemption 2. Subdivisions 3. Drilling J. New Mexico 1. Exception 2. Subdivisions 3. Drilling K. North Dakota 1. Exemption 2. Drilling L. Oklahoma 1. Exemption 2. Drilling M. Oregon 1. Exemption 2. Drilling N. South Dakota 1. Exemption 2. Drilling O. Texas 1. Exemption 2. Subdivisions 3. Drilling P. Utah 1. No Exemption 2. How Utah Administers Its Domestic and Stock Permitting Processes 3. Subdivisions 4. Drilling Q. Washington 1. Exemption 2. Subdivisions 3. Drilling R. Wyoming 1. Exemption 2. How Wyoming Administers Its Domestic and Stock Permitting Processes 3. Subdivisions 4. Drilling III. HOW EXEMPT WELLS CAN COMPLICATE OR COMPROMISE WATER RESOURCES ALLOCATION, ADMINISTRATION, AND QUALITY A. Water Resources Allocation 1. The Cumulative Effect of Many Exempt Wells May Equal the Impact of a Single Large Withdrawal 2. The Impacts of Exempt Wells upon Surface Flows, Habitats, and Aquifers 3. The Potential Impact of Exempt Wells upon Water Rights 4. Well Owners May Lack the Hydrologic Knowledge and Engineering Expertise to Develop a Long-Term Water Supply B. Administration 1. There Is a Lack of Information Regarding Exempt Wells 2. There Is a Lack of Administrative Resources for Exempt Well Monitoring and Enforcement. 3. The Challenges of Quantifying the Impacts of Exempt Wells 4. "Exempt "Subdivisions 5. Exempt Wells Are Not Subject to Conservation Efforts 6. Coordination Among Agencies C. Potential Water Quality Problems 1. Naturally Occurring inorganic Contaminants 2. Nitrification of Groundwater Supplies 3. Pesticides 4. Contamination Related to Well Maintenance and Construction 5. Seawater intrusion 6. Wastewater and Septic Tanks IV. SPECIFIC CHALLENGES WSWC MEMBER STATES FACE WITH RESPECT TO EXEMPT WELLS A. Arizona 1. Managing Exempt Wells Within Active Management Areas (AMAs) 2. Water Quality B. Colorado 1. Legal Questions C. Idaho 1. General Challenges 2. Admiministrative Challenges 3. Exempt Well Use in Subdivisions 4. Issues for Further Discussion D. Montana 1. Exempt Well Use in Subdivisions 2. Groundwater Ponds E. Nevada 1. Data Regarding Domestic Well Numbers 2. Water Quality 3. Protecting Domestic Well Owners F. New Mexico 1. New Mexico's Sixth Judicial District Court Ruling 2. Development on Land Where the Appurtenant Water Rights Have Been Severed G. Oregon 1. Land-Use Laws Restricting Development in Rural Areas H. Washington 1. Use of "Six Pack" Group Domestic Wells in Subdivisions 2. Whether Washington 's Stock Watering Exemption Is Limited or Unlimited V. RELATIVE COSTS AND BENEFIT OF MONITORING WELLS THAT ARE CURRENTLY EXEMPT A. Requiring Metering for Existing Exempt Wells B. Requiring Self-Reporting for Existing Exempt Wells C. Infrared Aerial Photography D. Landsat Thermal Band Data E. Monitoring, Testing, and Assessing Exempt Well Water Quality VI. POTENTIAL APPROACHES TO MITIGATE THE ADVERSE IMPACTS OF EXEMPT WELLS A. Generally Infeasible Approaches 1. Grandfather Existing Exempt Wells and Repeal or Dramatically Reduce the Exemptions for New Exempt Wells on a State wide Basis 2. Reduce Flow Rates and Volume Withdrawals for Existing Exempt Wells 3. Metering All Existing and New Exempt Wells on a Statewide Basis B. Generally Feasible Approaches for New Exempt Wells 1. Limit the Types of Development an Exemption Covers 2. Modify the Subdivision Approval Processes 3. Restrict New Exempt Wells in Areas of Concern 4. Refine Exemptions to Allow for More Specific Applications 5. Reduce Flow Rates and Volume Withdrawals for New Exempt Wells 6. Require Limits for Consumption Instead of Withdrawals for New Exempt Wells 7. Ensure Proper Well Construction 8. Improve Well Record Information 9. Establish Priority for New Exempt Wells for Nondomestic Purposes 10. Ban New Exempt Wells in Areas Where Public Water Systems Are Available and Require Them to Hook Up to Public Systems When They Become Available C. Generally Feasible Approaches for Existing and New Exempt Wells 1. Update Exempt Well Information When Property Is Transferred 2. Collaborative and Negotiated Approaches 3. Utilize Monitoring Methods Other Than Metering 4. Public Education Programs VII. CONCLUSION I. INTRODUCTION

Exempt domestic and livestock wells are an important source of water for large numbers of users throughout the West. However, they also pose significant regulatory and administrative challenges and have the potential to affect the sustainability of water supplies, surface flows, and water quality. (1) With the exception of Utah and California, which do not have a statewide groundwater permitting process, every western state exempts certain groundwater uses from its permitting or adjudication procedures. (2) In general, these exemptions allow land owners to withdraw small amounts of water for domestic or livestock purposes without obtaining a permit or subjecting their use to adjudication, monitoring, or reporting requirements. Most states created these exemptions decades ago with the belief that these uses have a de minimis impact and were not worth the time and expense needed to permit and regulate them.

However, as the West's population grows, the demand for water increases, and many landowners and subdivision developers have begun installing "exempt" (3) wells in closed basins and other areas with strained water supplies to circumvent the costs and time associated with acquiring the necessary permits and water rights to build public water systems. (4) This has resulted in large numbers of unregulated wells in highly concentrated areas without consideration of their potential impact. (5) Some observers are concerned that the cumulative impact of these wells could impair senior water rights, create environmental problems, and threaten water quality and water supplies. (6) This has led some to call for the restriction or repeal of these exemptions, while others have opposed restrictions, believing that exempt wells do not have an adverse impact, are a private property interest, and are vital to economic growth. (7)

In June 2008, the Western States Water Council (WSWC), an affiliate and water policy advisor to the Western Governors' Association, issued a report entitled Water Needs and Strategies for a Sustainable Future: Next Steps, which recommended that states "evaluate the merits" of permitting and monitoring exempt wells as part of water right regulatory schemes. (8) To this end, the WSWC's Legal Committee commissioned this Report to promote discussion of the concerns associated with exempt wells by evaluating 1) the statutory and regulatory authority regarding exempt wells and domestic well drilling, 2) the ways in which exempt wells can complicate or compromise water resources allocation, administration, and quality, 3) the specific challenges member states are facing with respect to exempt wells, 4) the relative costs and benefits associated with monitoring wells that are currently exempt, and 5) the potential approaches to mitigate the adverse impacts that exempt wells may have. (9)

II. STATUTORY AND REGULATORY AUTHORITY REGARDING EXEMPT WELLS AND EXEMPT WELL DRILLING

The statutes and regulations that exempt groundwater use in the West vary considerably with respect to the quantity and uses of water that can be withdrawn without a permit. This Part will describe these exemptions and the requirements that govern the drilling of exempt wells in each WSWC member state. Where applicable, this Part will include a synopsis of those laws and regulations that govern the use of exempt wells in subdivisions.

1. Alaska

   1. Exemption

      Alaska does not distinguish between groundwater and surface water for water right purposes, (10) and requires those seeking to install a groundwater well that Will withdraw a "significant amount of water" to file a water right application with the Alaska Department of Natural Resources. (11) It is a crime in Alaska to use a "significant amount of water from any source" without a permit, certificate, or other authorization. (12) However, Alaska's Administrative Code provides a de facto exemption to this rule by not requiring applications for water uses that do not qualify as a "significant amount of water," which it defines as 1) "the consumptive use of more than 5,000 gallons of water from a single source in a single day," 2) "the regular daily or recurring consumptive use of more than 500 [gallons per day (gpd)] from a single source for more than 10 days per calendar year," 3) "the nonconsumptive use of more than 30,000 gpd ... from a single source," or 4) "any water use that may adversely affect the water rights of other appropriators or the public interest." (13) In addition, an exempt use does not acquire a water right or priority date, is subject to appropriation, and can be curtailed "in order to supply water to lawful appropriators ... or to protect the public interest." (14)

      For those water uses that do require an application (water use that is more than a significant amount of water), Alaska's Administrative Code exempts applications to appropriate less than 5000 gpd of water from its public notice requirement. (15) This is significant because the notice requirement mandates that the state's Department of Natural Resources publish notice of nonexempt applications in a newspaper of general circulation, while also serving individual notice via certified mail on prior appropriators who may be taking water from the proposed source. (16)

      It is important to note that any person using...