Death by a thousand wells

by Cally Carswell

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.

Although Ecology said the ban was necessary to protect surface water rights, the agency hasn't proved that domestic wells affect aboveground water. Officials expect a forthcoming U.S. Geological Survey study to define the extent to which groundwater interacts with rivers and streams in the Yakima Basin. But the study doesn't address groundwater dynamics in the bedrock aquifers that predominate in upper Kittitas County, where the drilling ban is in place. Still, says Tebb, Ecology believes that most groundwater there flows into the Yakima or a tributary, and that surface waters in the upper county are especially sensitive to groundwater pumping. The area is home to the basin's headwaters, and because of its mountainous topography, development tends to occur closer to streams.

However, without hard evidence to support a drilling ban, general contractor Steve Senger says it is economically indefensible. Senger estimates he's lost $3 million in business since July. He's laid off five of six full-time employees, including one of his daughters, and reduced the sixth's hours. "(The ban) has pretty much devastated the construction industry in upper Kittitas County," he says.

The construction industry is the area's third-largest employer, behind state and local government, according to County Commissioner Mark McClain. The county legally supports developers' use of exempt wells to serve multiple homes, he says, because even groups of homes are still only allowed to pump 5,000 gallons of water a day. But, as in most of the West, no one is metering the wells to see how much they're actually pumping.

"If you don't meter them, you surely can't manage them," says Gary Woodard of the University of Arizona. That's why Woodard is seeking volunteers to participate in a well-metering study in Cochise County, Ariz., where there are about 10,000 exempt wells. Most new wells in the county are going in close to the San Pedro River, which ran dry in 2005 partly because of groundwater pumping and growth. Those wells may actually be drawing surface water or intercepting groundwater on its way to the river, says Woodard, but without metering, their impact is hard to pin down. Despite offering anonymity, Woodard has had trouble recruiting volunteers. He says people assume meters will lead to limits on their water use.

"Folks that are out there in these rural areas, they like to be left alone," he says. "And they've got a sizable investment in their well system."

Indeed, limiting exempt wells, especially in the high-growth areas where tighter controls are most needed, is a politically thorny endeavor. Property-rights advocates typically oppose restrictions, and development is a significant economic engine in the rural areas where exempt wells have become controversial. Legislatures are hesitant to touch the issue. In New Mexico, where domestic wells require permits but are not subject to regulation under prior appropriation, bills are killed almost annually. The same is true in Arizona, which has few regulations on rural groundwater pumping.

In the Washington Legislature this year, a bill died that would have required metering of new exempt wells and limited to six the number of homes that could hook up to a single well. In the absence of such reform, the Department of Ecology's authority to regulate domestic wells remains unclear. The attorney general recently issued an opinion permitting the agency to close over-appropriated basins to exempt wells, but not to change the terms of the exemption. Ecology cannot lower the daily withdrawal limit below 5,000 gallons, for instance; only the Legislature could do so.

In the wake of that opinion, Ecology officials expect existing rules that limit exempt wells to stand. In the Walla Walla Basin, for example, new homes and developments in high-density areas are required to connect to municipal water systems whenever possible, new exempt wells are metered, and outdoor watering is mitigated.

But the agency is uncertain about the status of rules it's currently negotiating with county governments. If things aren't settled in Kittitas County, many see litigation on the horizon. The basin's most senior water-rights holders, like the Yakama Nation, could take the state to court at any time to cut off exempt wells during drought. If they succeeded, a lot of people who thought they had a reliable water source could be left high and dry. "We're going to have a water war," warns Osborn. "You can just see the knives are sharpening."  

This article was made possible with support from the Kenney Brothers Foundation.

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