Joe Peck would rather go to jail than close his city's water tap. But every time drought parches the dry side of the Cascade Mountains, the state of Washington orders him to shut its valve.
Peck is water superintendent for Roslyn, Wash., a community of about 1,000 residents in upper Kittitas County, high in the Yakima River watershed. In dry years, Roslyn's 1908 rights to Domerie Creek aren't senior enough to keep its toilets flushing. The first time the state ordered Peck to shut the water off, in 2001, he leased water from the nearby resort Suncadia. That kept Roslyn's faucets flowing that summer and again in 2004 and 2005.
But Peck still had to curtail water use. As Roslyn's lawns turned brown, he bristled, watching new homes and subdivisions -- some within sight of town -- continue to water their plush grass.
Such development, much of it built within the last decade, flies under the regulatory radar because it relies almost exclusively on permit-exempt domestic groundwater wells. Under a 1945 state law, wells drawing 5,000 gallons a day or less for household use don't require a permit. Neither do wells for watering a small lawn or garden, livestock or minor industrial use.
Under the doctrine of prior appropriation, in which the oldest claims are first in line for water, domestic wells, like all groundwater rights, should fall behind surface water rights. But while Washington law recognizes that groundwater and surface water are connected, the state restricts groundwater withdrawals only if their impact on more senior rights can be shown. Such connections are especially hard to prove for exempt wells, which are scattered and individually draw small amounts of water. So they operate unrestricted even during extreme droughts, while Roslyn must cut back.
"There's no equity in that," says Jeri Porter, Roslyn's mayor.
The Washington Department of Ecology agrees. In a presentation to the Western States Water Council this August, Ecology's then-director, Jay Manning, called exempt wells "water management's Achilles' heel." Every Western state except Utah has some version of Washington's domestic well exemption. The original logic was basically this: Domestic wells didn't consume enough water to have a measurable impact on existing water rights, so putting homesteaders through a cumbersome permitting process was more trouble than it was worth.
But with exempt wells lubricating rapid residential development in river basins where water is already completely spoken for –– from Washington's Yakima Basin to the Gallatin Basin in Montana to the Mimbres Basin in New Mexico –– whether that's still true is up for debate. In Montana, for example, nearly 30,000 exempt wells were drilled between 2000 and 2008, 70 percent of them in the state's four fastest-growing counties. "We know by hydrologic principle that it's a problem, but we can't say this river is dry because of it," says Laura Ziemer, director of Trout Unlimited's Montana Water Project. "By the time you get to the point where you can conclusively measure it, it's too late."
Kittitas County has also boomed. It was the third-fastest-growing county in Washington between 2000 and 2007. Building in the rural upper reaches surged around 2006, significantly outpacing development in the lower county. New water rights haven't been available in Kittitas for more than 15 years, so most of that growth was supported by exempt wells. Some 3,000 have been drilled since 1998.
Many of those supply water to multiple homes or even entire subdivisions, and not always legally, according to Tom Tebb, regional director for the Department of Ecology's water resources program. In 2006, Kittitas County had authority from the state to approve group use of a single exempt well for up to 14 homes; larger subdivisions required a water permit. But developers sidestepped the rule by clustering multiple 10- to 14-lot projects, each under a different limited liability company, or LLC, together.
In one case that year, the county signed off on four 14-lot developments as if they were unrelated, entitling each to pump 5,000 gallons of water a day from an exempt well. All four parcels bordered one another, would share a single road, and were originally owned by the same man, who in one day sold them all to different LLCs, three of which he had a stake in. To Ecology, this was one development, and required a water permit under a 2002 Supreme Court decision that said a single subdivision can't pump more than 5,000 gallons of water a day from exempt wells.
Ecology challenged the county's approval of three of the developments, and none were built. Still, they raised red flags for a few activists, who petitioned the agency in 2007 to impose a moratorium on all new groundwater withdrawals in the county, noting particular concern about the proliferation of exempt wells.
Ecology opted instead to negotiate well limits with county commissioners. But almost two years later, no agreement had been reached. "(The county) is unwilling to confront the water adequacy issue," says Rachael Paschal Osborn, executive director of the Center for Environmental Law and Policy, a supporter of the petition. "They're extremely conservative, very pro-growth. They don't care that the rural values they purport to enshrine are actually being lost because of the land-use policies they endorse."
So this July, Ecology took unprecedented action, declaring a 120-day emergency ban on new wells in upper Kittitas County. The agency was concerned "that an already water-short basin is being stretched to the breaking point," Director Manning wrote in Ellensburg's Daily Record.