State AG upholds limits on new wells

YAKIMA, Wash. -- The Washington Department of Ecology has legal authority to forbid new water wells, including the small, individual wells being tapped for new homes in Kittitas County, concludes an opinion from the state Office of the Attorney General.

In a 16-page opinion released Tuesday, the attorney general provided the state agency some legal backing in its efforts to regulate groundwater but also indicated there are limits.

The attorney general said Ecology can't rely on negotiated agreements with counties to reduce the amount of water that can be drawn from such wells. Doing so, the opinion said, would be a modification of state law.

The much-anticipated opinion addresses a number of legal questions about the state's ability to rein in one of the primary drivers of rural development in Washington state for decades: unpermitted wells. The opinion now sends Ecology and county commissioners back the negotiating table with fewer issues to talk about, representatives from both sides said Tuesday.

Those talks will likely center on mitigation -- requiring homeowners and new water users to purchase an existing right to offset a new well -- as the only way development in upper Kittitas County can continue.

Meanwhile, a new U.S. Geological Survey report issued Tuesday shows that some water levels in wells are dropping in the Yakima River Basin -- some as much as 10 feet per year. Some wells have declined by as much as 150 feet. Other water levels in deeper wells have fallen as much as 300 feet.

The overall review, initiated after Ecology imposed a moratorium on new wells other than exempt wells throughout the three-county basin, was designed to assess the impacts groundwater pumping is having on surface water in rivers and streams.

That same concern prompted Ecology to impose a moratorium on all new wells in upper Kittitas County in July. State officials contend the proliferation of unpermitted wells is drawing down the water supply for senior rights holders and stream flows.

The affected area stretches west and north of Indian John Hill along Interstate 90, and includes Cle Elum, Roslyn and Ronald.

Exempt wells do not require a state permit and allow up to 5,000 gallons of water daily for homes and a like amount for industrial uses. Two other exempt uses, enough water for a half-acre lawn and garden and watering livestock, aren't limited to an amount under the groundwater code the state Legislature approved in 1945.

Kittitas County Commissioner Paul Jewell, who is representing the county on the well issue, said Tuesday a meeting with Ecology officials is tentatively set for Friday.

Jewell said the attorney general's opinion shows Kittitas County had legitimate concerns about Ecology's proposals to reduce the 5,000-gallon limit for some individual wells.

"We hope this will provide clarity as we move forward. We hope Ecology will maintain the same commitment," Jewell said Tuesday in a telephone interview. "We certainly maintain an interest to work with Ecology and get this moratorium lifted. We just wanted to make sure what we are doing is legal."

Ken Slattery, who heads the agency's water resources program, sounded a similar tone.

"We want to go back to the table with the commissioners and see if there is another way to approach this that we have not thought of," Slattery said. "Clearly, the opinion does cut off some alternatives we thought were possible to look at."

State Rep. Bill Hinkle, R-Cle Elum, has sharply criticized the Department of Ecology for the ban, calling it an abuse of power.

He said Tuesday he's not sure the opinion from Olympia settles the issues facing Kittitas and larger, rural counties where exempt wells are more widespread.

Hinkle said the answer may be to develop new water storage to take care of competing uses in the basin.

One observer, a representative of an environmental group that helped lead the challenge to growth of exempt wells in Kittitas County, applauded the opinion.

Rachael Paschal Osborn, executive director of the Center for Environmental Law and Policy, a Spokane-based group, said the opinion reinforces the 2007 effort by a local group to ban new wells prior to a study on the effects of groundwater withdrawals.

"I think Ecology has done what they need to do. They have closed the basin and established a water exchange and future uses will have to be obtained through a mitigation process," she said. "Ecology really can't reopen the basin because they don't know if water is available."

A local group, Aqua Permanente, petitioned Ecology in 2007 to halt all new wells pending the study of the effects of groundwater use on senior water rights and streams.

Ecology denied the petition, prompting the two years of talks that resulted in Monday's attorney general opinion.

Kittitas County commissioners requested the opinion in May, and Ecology Director Jay Manning followed up with a different set of questions to the attorney general in June.

* David Lester can be reached at 509-577-7674 or dlester@yakimaherald.com.

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