As can often be the case, a law once reasonable and practical may become impractical, contradictory and absurd. So it is with alleged “exempt wells” law in Washington state.
While we have come to think that our rains and annual snow packs have blessed us with an abundance of water for all and every need, the fact is that as in all of the other western states, water is dear. Arizona, Nevada, New Mexico and, of course, California are all facing water crises that stem from decades of growth and its associated demand for water.
In every instance, the thirst of growing population has come up against the needs of agriculture and the very survival of other species and their habitat. Like everything else in our world, water is a finite resource.
Over the past two centuries water law has evolved as conflicting demands have required. For some hundred years the law has been clear: the water belongs to the public; the rights of latecomers, if any, are junior to earlier users’ rights, and where no water is available, where it is already put to good use, no right to it can be acquired.
Growth management legislation, passed in the early 1990s, established a clear link between the development of land and water availability. Under these laws, an applicant for a building permit, or an individual seeking approval of a plan to subdivide, is required to prove there is an adequate water supply. It is in this context that so-called exempt wells are interesting.
In 1945, the legislature enacted the Ground Water Code that established the same process for perfecting a right to use groundwater that had earlier been established for vesting a right to use surface waters. Above all else, withdrawal of groundwater was not to affect surface water rights.
Exempt Well Is Misnomer
At the time, most population growth was in cities, and residences outside of urban areas (aside from farms and ranches) were few. To prevent the new law from being unnecessarily burdensome on folks living in the country, who irrigate small gardens, water stock, and generally live a rural lifestyle, some uses of groundwater were allowed without first applying for a permit. Hence the misnomer “exempt well.” The exemption from applying for a permit was never intended to exempt anyone from the other requirements of the law.
Fast forward 50 years and you have a powerful lobby for residential development exploiting this exemption to claim an enormous and erroneous loophole that allows sprawling subdivisions to expand ever outward from our urban centers into rural lands. In 50 years, the number of these exempt wells in Washington had grown to 404,000 by 1995. By 2003, the state estimated there were over 750,000, with thousands more being added each year.
Here in Whatcom County we call these suburban enclaves, outside of areas designated for urban growth, “clusters” and they often rely on unpermitted wells that could never be granted a right to water. These wells take water needed by farmers who have used it for some time and are waiting for their rights to be recognized.
These unpermitted wells eventually preempt existing users, forcing them to give up or compromise their rights, as we are witnessing in the Bertrand Creek basin. More clusters are being proposed that will impair Ten Mile Creek and other surface waters closed to further withdrawals.
As the proliferation of these wells continued, their impacts on farming, the environment, critical areas and instream flows became more obvious and better understood. The Minimum Water Flows and Levels Act of 1967 was the first attempt to protect fish and other instream values by allowing the Washington State Department of Ecology (Ecology) to establish minimum instream flows.
In different parts of the state, disputes arose between existing water users and latecomers who were taking water without a right, or even a nominal demonstration that water was available. Developers succeeded in exploiting the situation in large part because the burden of proving that senior rights were being impaired fell upon the victims. Throughout western Washington, significant among those victims have been the anadromous species presently threatened with extinction in spite of the 1967 act.
So, in 1971, as part of the Water Resources Act, establishment of base flows in rivers and streams was mandated by RCW 90.54.020(3)(a), which required that the natural environment be protected and base flows in our rivers and streams be sufficient to preserve fish, wildlife, scenic, aesthetic and other environmental values.
RCW 90.54.040 authorized a comprehensive state water resources program for making future water allocation decisions. Pursuant to this authorization, Ecology adopted rules establishing the Water Resources Inventory Areas and minimum flows. In Whatcom County, this process was largely allowed to die from lack of funding when it became clear that, because its waters were already over allocated, future development would be severely restricted.
Significant Litigation
Evolving legislation intended to protect senior rights and the environment soon led to significant litigation. It is critical to understand two cases: Hubbard v. Department of Ecology and Postema et al v. The Pollution Control Hearing Board.
In 1992 the Hubbard brothers applied to withdraw water from the Wagonroad Coulée aquifer to irrigate their orchards. The aquifer drains into the Okanogan aquifer, which in turn feeds the Okanogan River. They were allowed to proceed on a temporary basis while Ecology investigated the availability of water for appropriation.
RCW 90.03.290 requires Ecology to reject an application if there is no unappropriated water available, or if withdrawal will conflict with existing rights or be detrimental to the public welfare (Jensen v. Department of Ecology).
Two aspects of water rights seniority are important to this case. First, the rights of surface water appropriators are superior to those subsequently acquired in underground water that is a tributary source of the surface water, or that may otherwise affect the flow of the surface water (Rettkowski v. Department of Ecology). Second, under state law, minimum flows are treated as appropriations with priority dates effective as of their establishment.
In general, water can move from the ground to surface waters, as well as from surface water to groundwater. How it moves depends on several factors, including gravity, saturation of the ground materials, the hydraulic gradient, the level of the groundwater and the type of material through which it moves.
Pumping well water can affect groundwater movement by lowering pressure and wellheads, by reducing groundwater storage and by changing rates of groundwater recharge and discharge. The interrelationship is known as “hydraulic continuity” and can be quite complex. Its effects are sometimes difficult to measure and may occur great distances from the point of withdrawal. Pumping may not have a discernible effect on surface water until considerable time has passed.
In Hubbard v. Ecology the evidence showed, and the courts ruled, that the coulée aquifer was tributary to the Okanogan aquifer and therefore affected the river’s flow. Accordingly, the Hubbards’ rights to groundwater from the aquifer were junior to the minimum instream flow established in 1976 for the river.
Additionally, since any allowed use of surface waters must be conditioned to protect the minimum levels established for each river basin, if there is hydraulic continuity between surface water and the proposed underground water source, the groundwater use must be subject to the same conditions.
Hence the Hubbards’ permit required they not use water whenever the Okanogan River was below minimum instream flow. The Hubbards’ appeals to the Pollution Control Hearings Board, the Superior Court and the State Court of Appeals were unsuccessful, and the principal of hydraulic continuity became an important consideration in water allocations.
In 1995, John Postema was one among many applicants in King and Snohomish Counties denied by Ecology a right to groundwater in hydraulic continuity with surface waters closed to further appropriations, primarily to preserve instream flows and protect salmon.
Among other arguments, Postema contended that some minimal impairment of senior rights and instream flows was expected by the Legislature, and to be tolerated, because, by statute, exempt wells were allowed and necessarily would have an effect on instream flows.
In October of 2000, the Washington State Supreme Court rejected this argument stating that legislative exemptions from the permitting system do not determine what “impairment” means, implicitly asserting that the limited exemption from permitting did not trump the whole body of water law, which includes the requirement that water be available for additional appropriation in order to gain a right to its use.
Withdrawal Can’t Impair Closed Waters
The court held that where there is hydraulic continuity, and withdrawal of groundwater would impair associated surface water rights, including minimum flows, permission to withdraw water must be denied.
More importantly, the court also concluded that where Ecology determines that surface water is not available for additional appropriation, a right to groundwater in hydraulic continuity with a closed stream or lake must be denied if its withdrawal would have any, even minimal, effect on the surface water.
Interestingly, a half dozen attorneys for various concerned Indian tribes were respondents in this case because of its significance for treaty fishing rights and the reserved water rights of the respective tribes.
Several of these same lawyers were also then engaged in protracted negotiations with the State of Washington that began when Judge Boldt decided, in U.S. v. Washington (1974), that the tribal right to fish includes a right to have sufficient water for fish, a right “from time immemorial” pre-dating all other water rights.
In the second half of that case, U.S. v. Washington (1980), commonly known as Boldt II, Judge Orick agreed with the tribes’ position that their treaty right to fish gave them a right to expect the state to impair neither salmon nor their habitat. Washington appealed this ruling and the Ninth Circuit Court of Appeals supported Orick’s decision; later the court vacated their ruling on the state’s motion for reconsideration on the very legal ground that there had not been a factual dispute in the case before Judge Orick.
After years of unsuccessful negotiations with the state, the tribes returned to court, alleging that thousands of road culverts throughout Washington impaired salmon habitat — a genuine factual dispute. This sub-proceeding of the Boldt case went on for additional years itself with the state resisting tribal authority to regulate and their contention that their right to take fish placed an affirmative duty on Washington to preserve fish habitat.
2007 Culvert Case
In early 2007 matters came to a head, and Judge Martinez ruled for the tribes and said that the state must remove or repair road culverts impeding fish migration and propagation.
While not the imposition of a broad affirmative duty to take all possible steps to protect fish runs sought by the tribes, the ruling established that where a specific activity damages fish habitat, the state, or any local government, may be restrained from continuing to harm that habitat. And more importantly, where past actions have impaired fish habitat, they will be required to take the remedial action required to restore it.
Some understand that the hundreds of millions of dollars that will be required to replace the culverts and redress these past actions is but the first installment in restoring salmon runs and their habitat. Road culverts are hardly the only activity that local governments have allowed to impair that natural habitat.
Little is more threatening to fish habitat than the changes wrought in our rivers and streams from overdevelopment in their watersheds, and overallocation of the waters that once recharged them. While Whatcom County has demonstrated a will to fail to protect or even inventory our water resources, further dithering will someday bring an order similar to the Martinez ruling.
For many years the tribes have protested new withdrawals of groundwater, arguing that insufficient stream flows evidenced an impairment of fish habitat. With Martinez’s ruling, and a sufficient basis in fact, they can now ask the federal court to order a reasonable reduction in those withdrawals. They can ask that there be no new withdrawals until it is demonstrated that there is surplus water available, after the needs of fish have been satisfied.
The Growth Management Act linked county development responsibilities and the duty to protect groundwater with water availability issues. RCW 19.27.097 requires proof of an adequate water supply prior to issuance of a building permit. Evidence must be in a form sufficient to prove there is an adequate supply for the foreseeable future.
Directive to Counties
In determining what constitutes proof, Attorney General’s Opinion, No.17 from 1992 is directive to counties. It determined that, at a minimum, the criteria adopted by the local health department must recognize the implications of the water rights statutes. And consequently, any applicant for a building permit who claims that the building’s water will come from a well must prove that water is available for appropriation and that they could gain a right to take said water, whether or not they need a permit before withdrawing it.
Clearly, where water is not available for appropriation because instream flows are unmet and new surface withdrawal is precluded, it is impossible to grant a right to take water and, ipso facto, it is impossible to prove a right to take water could be granted. For Whatcom County to continue to accept unpermitted wells as evidence of an adequate water supply is more than an abuse of discretion.
There are always two approaches to the law. One can embrace its intent and endeavor to follow it even though it presents difficulty and restricts our immediate interests; or one can look for a loophole, circumvent it, or hope not to get caught and forced to compensate those damaged by our extra legal actions.
Whatcom County must end the reckless permitting of building and development that exacerbates the overallocation of water. The unexamined acceptance of so-called exempt wells must stop. It is time to realize that the water is needed to preserve farming. It’s time for our county administration to protect existing water users from future curtailments similar to what is happening in the north county now.
The reality is that all water rights are junior to the need for fish to have stream flows sufficient to survive and flourish. It’s time to do the right thing. Above all else, it’s time to stop the damage. It is irresponsible to ignore the future costs of the damage being done. These fish are part of our common wealth. This is a direct threat to the public welfare.
It’s time for Whatcom County to require builders and developers to prove that water will be available on an ongoing basis before approving their plans and granting them permits, instead of looking the other way as they steal the water.
