Healthy soil and sustainable growing

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Death by a thousand wells
Unregulated wells strain short water supplies in Washington’s Yakima Basin 
and throughout the West
News - From the October 19, 2009 issue of High Country News
http://www.hcn.org/issues/41.18/death-by-a-thousand-wells/article_view?b_start:int=0&utm_medium=email&utm_source=wcn1

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."