Six-packs for subdivisions: the cumulative effects of Washington's domestic well exemption.

• Author: Caldwell, Robert N.

1. INTRODUCTION

   DO not let your chances like sunbeams pass you by For you never miss the water till the well runs dry.

   --Rowland Howard (1876)

   Under Washington State water law, groundwater cannot be withdrawn from any aquifer unless a permit is first obtained from the Department of Ecology.(1) However, the law exempts withdrawals of up to 5000 gallons per day from permitting requirements for stockwatering, domestic purposes, watering a lawn or noncommercial garden up to one-half acre in area, or industrial uses.(2) Generally, these "exempt wells" are considered small uses having no significant impact on groundwater quantity and quality. The cumulative impact of Washington's exempt wells, however, is anything but small.

   Hundreds of thousands of exempt wells currently exist in Washington, with thousands of new wells being constructed each year.(3) These wells affect resource management because the amounts of water withdrawn are unquantified and, due to their unregulated nature, create untold effects on streamflows that are hydraulically connected to groundwater aquifers. Exempt wells affect public health when the water sources from which they draw are contaminated by nitrate concentrations,(4) seawater,(5) or agricultural pesticides and herbicides.(6) Additionally, public health officials have identified numerous problems stemming from improper exempt well maintenance.(7)

   State agencies, local governments, and private parties lack understanding concerning the proper interpretation and scope of the exempt well statute.(8) This led to a proliferation of exempt wells in recent years. Land developers have seized the exemption as a tool to circumvent statutory provisions requiring a permit from the Department; of Ecology prior to withdrawal of groundwater.(9) Thousands of residences that rely on exempt wells as the only source of water are being constructed.(10) This Article explores the cumulative effects of Washington exempt well proliferation on resource management, public health, and instream flows, and demonstrates that those effects are far from de minimis.

   Part II explains the exempt well statute and attempts to quantify the extent of Washington's ubiquitous exempt wells. Part III explores the impacts of exempt wells on resource management, instream flows, and public health. Part IV discusses current case law from the state Pollution Control Hearings Board and a recent Attorney General's opinion on the subject.(11) Part V offers measures for legislative consideration to mitigate the cumulative effects of exempt

   wells on resource management, public health, and instream flows.

2. QUANTIFICATION OF THE EXEMPT WELL PROBLEM

   1. The Exempt Well Statute

      In 1945 the Washington Legislature enacted Chapter 90.44 of the Revised Code of Washington as a supplement to Chapter 90.03, the Water Code, for the purpose of "extending the application of such surface water statutes to the appropriation and beneficial use of ground waters within the state."(12) This act created Washington's Ground Water Code.(13) Prior to 1945, use of groundwater was unregulated. Recognizing that withdrawals of groundwater could impact surface water flows, the legislature declared that the Ground Water Code was not to affect surface water rights.(14) A central element of the Ground Water Code is its legislative declaration that all groundwater belongs to the public and is subject to appropriation for beneficial uses.(15) Essentially, the legislature made the use of groundwater subject to the same rules that apply to surface waters and further integrated the two by making surface water uses superior to subsequent appropriations of groundwater.

      Like surface water withdrawals,(16) groundwater withdrawals are prohibited unless enumerated procedures are followed and a permit is issued by the Department of Ecology.(17) The Ground Water Code requires that groundwater applicants comply with procedures established in the Surface Water Code.(18) An application must be filed,(19) a public notice published in a newspaper of general circulation in the country where the withdrawal is to be made,(20) and the Department of Ecology must investigate the application. Only if it finds that there is "water available for appropriation for a beneficial use, and the ... application will not impair existing rights or be detrimental to the public welfare" may the Department of Ecology issue a permit for the use of public groundwater.(21) Thus, both the Ground Water and Surface Water Codes have identical requirements for new appropriations of water: unless a permit is obtained from the Department of Ecology, no use of the public's water is allowed.(22) There is one exemption from this permit requirement; however, it is found only in the Ground Water Code.

      RCW 90.44.050 is Washington's exempt well statute. In allowing for enumerated small withdrawals, it states:

      After June 6, 1945, no withdrawal of public ground waters of the state shall be begun ... unless an application to appropriate such waters has been made to the department and a permit has been granted by it as herein provided: Except, however, that any withdrawal of public ground waters for stockwatering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or for an industrial purpose in an amount not exceeding five thousand gallons a day, is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions of this chapter....(23) The exempt well statute provides a means by which landowners may access water for domestic purposes, including small-scale irrigation and industrial purposes, without complying with regular procedures. The exemption saves the appropriator of small withdrawals the trouble and expense of applying for a permit where the impact of the withdrawal is slight, and saves the state the trouble and expense of processing applications for small withdrawals that would have little effect on water availability.(24) As the Attorney General stated, "the Legislature recognized that very small withdrawals were unlikely to have a significant impact on the water system or to affect the outcome of disputes, and thus could be safely exempted from the permit requirement."(25)

      A key to understanding the exempt well statute is to focus on what the small withdrawals are exempt from and what they are not. Small withdrawals are exempt only from the requirements that an application be made and a permit received from the Department of Ecology prior to withdrawal of public groundwater.(26) Small withdrawals are not exempt from any of the other substantive provisions of the Ground Water Code. For example, although small withdrawals are exempt from the requirements to obtain a permit, they cannot affect surface water rights,(27) cannot be used without economical beneficial use,(28) and they are subject to the same system of priorities as all other appropriators, that is, where the frost right is the better right.(29) In sum, although exempt domestic users are not subject to procedural requirements to obtain water right permits, they are subject to the substantive provisions of the water code that regulate water allocation.(30)

      The exempt well statute includes two provisos that further narrow the scope of the exemption. The first proviso recognizes the need to quantify the amount of water withdrawn by exempt well users.(31) Because the state needs reliable information quantifying water withdrawn from the state's aquifers to manage water resources, the legislature authorized the agency to obtain that information.(32) The Department of Ecology is thus authorized to "require the person or agency making any such small withdrawal to furnish information as to the means for and the quantity of that withdrawal."(33) However, the Department of Ecology has never exercised this authority even though the cumulative effect of thousands of exempt wells continues to be adverse to groundwater resources, streamflows, and public health.

      The second proviso recognizes that parties making exempt withdrawals may, at their own option, file applications or declarations,(34) and obtain permits and certificates "in the same manner and under the same requirements as is in this chapter provided in the case of withdrawals in excess of five thousand gallons a day."(35) While the statute exempts small withdrawals from the requirement to obtain a permit and entitles those users to "a right equal to that established by a permit,"(36) if such users elect to obtain a permit or file declarations for vested rights they are subject to the substantive and procedural requirements of the water code.(37) Thus, when an exempt well user files an application for a permit, the Department of Ecology must follow the same procedures and apply the same substantive law that governs all water right applications.

      The Ground Water Code requires applicants desiring permits for appropriation of groundwater to comply with the statutory procedures of the Surface Water Code.(38) Those statutes define the protocol that must be followed to obtain an appropriation of water and the procedures the Department of Ecology must follow either to approve or reject such an application.(39) Additionally, the statutes explain the procedures that an appropriator must follow to obtain a water right certificate.(40)

      Because the exempt well statute generally allows unregulated use of water, the exact number of exempt wells currently in use is unknown.(41) What is known is that the construction of exempt wells has proliferated in the past few years; the amount of water currently being withdrawn from the state's aquifers is significant; and with projected population increases, the reliance on exempt wells...