Legal Aspects to Exempt Wells: A National Review Jesse J. Richardson, Jr. Policy and Research Advisor Water Systems Council Washington, D.C. Associate Professor, Virginia Tech Exempt Wells: Problems and Approaches in the Northwest Walla Walla, Washington May 17, 2011
Overview Water Systems Council publication Overview of regulations across the country Overview of litigation across the country Conclusions
Regulation Generally 17 states: 3 prior appropriation states plus 4 others with permitting regimes- 1 of these, Utah, provides no exemptions Exempt wells really not exempt Varying degrees of regulation
Regulation- Classification Alaska and Montana- based on yield only (Alaska gives discount on annual fees to domestic fees) Seven states (Idaho, Kansas, Nebraska, New Mexico, North Dakota, Oklahoma and Texas) generally base exemption on use Seven states (Arizona, Colorado, Nevada, Oregon, South Dakota, Washington and Wyoming) classify based on a combination of use and yield or quantity limitations
Regulation- Scope of Exemption Nebraska- registration only; Washington- permit only; Alaska- fees only South Dakota- complete exemption? Idaho, South Dakota and Wyoming- domestic uses are superior (other states, like Colorado, also give preference to domestic uses during droughts)
Regulation- types Construction requirements within exemption- Idaho and Texas Kansas, Nevada, North Dakota, Oregon, and Wyoming- certain information must be submitted Some language raises questions- for example, prior appropriation is a broad principle Has been appealed
Regulation- Types Geographic restrictions (e.g., fully or over-appropriated basins): Arizona, Colorado, Montana, Nebraska, Nevada, Texas and Washington Quantity limitations: Alaska, Arizona, Nevada, New Mexico, Oregon, South Dakota and Texas
Regulation- Types Limited irrigation within domestic: Arizona, Colorado, Idaho, New Mexico, North Dakota, Oregon, Washington and Wyoming Lower court reversed Mandatory hook-up to public water in certain circumstances- Arizona, Nevada and New Mexico
Bounds case (New Mexico) on appeal Trial court found in favor of Bounds, ruling that exempt well statute violates due process Court of Appeals reverses: Exempt well provisions constitutional Some Court of Appeals language raises questions- for example, prior appropriation is a broad principle Supreme Court of New Mexico has accepted appeal, briefs being filed
Bounds case ramifications Other states looking at Bounds with great interest Not binding, but may be persuasive Bounds has abandoned due process and takings claims: only claims left relate to prior appropriation doctrine
Montana- Administrative Action/Litigation On December 1, 2009, senior water rights holders filed a petition before the Montana Department of Natural Resources and Conservation ( DNRC ) asking the department to declare the definition of combined appropriation invalid and asking the department to initiate rulemaking to amend the definition of combined appropriation On August 17, 2010, DNRC issued a declaratory ruling in response to the petition, finding that the regulation is consistent and not in conflict with applicable law. However, the ruling also stated that increasing demands on water resources in Montana warrant repeal of the rule and stated an intent to initiate rulemaking within eight months of the ruling.
Montana- Administrative Action/Litigation Cont d DNR is evaluating a rule that would allow an exempt well to serve to up twelve residential lots with a maximum appropriation of 35 gallons per minute and not to exceed ten acre-feet per year. Administrative hearing has been appealed to court On October 5, 2010, notice of public meeting seeking commentsfirst meeting November 1, 2010 Presumably more hearings throughout state
Montana- Administrative Action/Litigation Cont d DNR settled appeal of administrative hearing by agreeing to pass a new rule Apparently, the state legislature is not happy Will the state legislature act?
Washington State Litigation- Part 1 Litigation pending on whether stock watering is limited to 5,000 gallons per day Environmental group lost in the lower court Has been appealed to Washington Supreme Court
Washington State Litigation- Part 2 On October 19, 2010, the Washington Supreme Court heard arguments in Kittitas County, et al. v. Eastern Washington Growth Management Hearings Board (Case No. 84187-0) Case focuses on Kittitas County s compliance with Washington State s Growth Management statute, the underlying issue focuses on exempt wells. One justice: Patterns of smaller lots in the rural area result in uncoordinated use of ground water (individual wells) and greater likelihood of groundwater contamination (individual septic systems). (page 60)
Washington State Moratorium Series of moratoria from September 10, 2007 until December 21, 2010 The Department of Ecology adopted a rule for managing ground water resources in upper Kittitas County on December 22, 2010; the rule became effective January 22, 2011 Chapter 173-539A WAC withdraws from appropriation all groundwater in Upper Kittitas County with the exception of uses for structures for which a building permit have been granted and vested prior to July 16, 2009 and uses which are determined to be water budget neutral
Washington State Moratorium Water budget neutral projects- identifying water rights that can be placed into the trust water right program to offset their consumptive use of groundwater Expedites the processing of pilot water banking transactions Requests a determination of water budget neutrality Technical Assistance and Enforcement Clarifies what withdrawals are new uses subject to the emergency rule Metering and reporting requirements
Washington State- Even more Department of Ecology seeking legislative authority to limit exempt wells to less than 5,000 gallons/day Water marketing/mitigation proposals
Policy Approaches Agreement on construction standards Education needed- much misunderstanding
Conclusions Lots of action in the courts, the agencies and the legislatures with respect to exempt wells Lots of unanswered questions Expect more action in all arenas