|Kittitas development images/CELP|
The Washington Department of Ecology on July 16 issued an emergency rule shutting down the upper Kittitas Valley groundwater basin – east of the Cascade Mountains roughly east of Seattle – to new wells, including wells exempt from ordinary filing requirements.
The decision marks something of a turnaround for Ecology, which had been more supportive of at least exempt well drilling in the area.
The Center for Environmental Law & Policy, which together with the local group Aqua Permanente had sought restrictions, praised the decision.
CELP and Aqua outlined the background for the case as, “Currently more than 7,000 permit-exempt wells are being drilled EACH YEAR in Washington state. Exempt wells are fueling rural sprawl, and used in unlimited quantities for feedlots and dairies. Because these wells are not subject to regulation, there is no control over when and where they are drilled. There is also no control over the impact of these wells on other water users and on hydraulically connected streams. Counties have the power to determine that water is not available for new subdivisions and building permits. But they are generally unwilling (with a few exceptions) to exercise this authority. Thus, rampant new development is being built on exempt wells without oversight or consideration of public interests.”
The state Department of Ecology reported its rule-making decision this way:
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.
Since 1998, nearly 3,000 wells have been drilled in Kittitas County, prompting concerns that groundwater pumping in the headwaters region of the county threatens senior water users and streamflows in the Yakima Basin. A number of parties, including the citizens group Aqua Permanente, the Yakama Nation, and the city of Roslyn, have asked that Ecology close the groundwater to further appropriation while a groundwater study is completed.
Earlier this week, an emergency rule expired that provided a mechanism for Ecology and the County to co-manage groundwater related to housing developments. The temporary rule reflected commitments the parties made last year in a formal Memorandum of Agreement (MOA), and had been revised and updated three times while the parties worked towards agreement on a permanent groundwater management rule.
“We recognize economic vitality is directly tied to water in the Yakima Basin – and we have been looking for an approach that would have allowed some limited new uses while also protecting the rights of senior water right holders,” explained Ecology director Jay Manning. “We had hoped to move forward as partners with the county to protect this vital resource until more is known about groundwater supplies in the upper county.
“We thought we had reached an agreement that would allow for some development in the upper county and at the same time protect the rights of current and future water users and streamflows in the Yakima River and its tributaries.”
A groundwater study designed to gain a better understanding of the connection between groundwater and surface waters was funded by the Legislature and will commence soon.
“Rather than close the groundwater during the study period, Ecology had proposed to partner with the County to (1) limit exempt wells to certain locations and reduced water volumes; (2) require metering of water use, including withdrawals from exempt wells; and (3) require notice to prospective property buyers of potential water shortages,” Manning explained. “The county has struggled to come to a decision and has missed three previous decision deadlines related to finalizing an agreement with Ecology. Faced with a management gap, we are adopting this temporary rule.”
The emergency rule will be in place for 120 days.
Some new water uses will be allowed under the emergency rule, but only if the depletion of the source will be fully mitigated. Mitigation can generally be achieved by acquiring and transferring or retiring another existing water right from the same source. Some existing sources of mitigation water are already available and Ecology is developing a water banking system to allow for access to mitigation water by new water uses.
Manning noted the agency remains open to a partnership with the county, and is willing to continue negotiations regarding the proposed partnership approach, but that the agency had to put interim protections in place.
The department added that “Ecology and Kittitas County continue to negotiate in good faith.”
CELP responded with its own statement:
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“This is unprecedented,” said Rachael Paschal Osborn, director of the Center for Environmental Law & Policy. “Ecology has never before completely closed a basin to all water rights, both permitted and exempt. This is a step in the right direction given the gravity of the harm to senior water users and salmon streams.”
In September 2007, Aqua Permanente and CELP filed a petition with the Department of Ecology asking that no further well drilling be allowed in Kittitas County until more is understood about groundwater resources. Ecology denied the petition and instead entered into protracted negotiations with County officials. After two years of wrangling, the negotiations failed.
“Ecology really had no choice. ” said Melissa Bates of Aqua Permanente. “The County was not cooperating. That Ecology has finally done the right thing is both unexpected and welcome.”
All water in the Yakima Basin is appropriated and water users with rights dating to as early as 1905 are required to shut off use on a regular basis. All new water users must have a water right permit with the exception of “domestic exempt” wells. Exempt wells are authorized in the state Groundwater Act, enacted in 1945.