Water Rights Responsibilities for Counties in the Wake of 1997 AGO No. 6
Jeffrey S. Myers , Deputy Prosecuting Attorney Thurston County
[ The views expressed herein are those of the author and do not necessarily constitute the position of Thurston County.]
Cite as: Water Rights Responsibilities for Counties in the Wake of 1997 AGO No. 6, by Jeffrey S. Myers , Deputy Prosecuting Attorney Thurston County WAPA Summer Training Program: Civial Track, June 24-26, 1998.
I. INTRODUCTION.
The availability of water for future development has long been an issue involving state government under the state Water Code. Historically, the Department of Ecology and its predecessors have been exclusively responsible for ensuring compliance with water rights requirements, including since 1947 the requirement that permits be obtained for withdrawals of groundwater in excess of 5000 gallons per day.
In recent years, however, DOE has compiled a massive backlog of water rights applications which remain pending. Pressures have been increased on counties to make determinations on water rights issues in their role as the approval authority over development of real property. As delays mounted, developers sought loopholes in the water rights system and increasingly began to use "six-packs" or "exempt wells" to provide water to new subdivisions. The developer would connect one well to six homes, which kept that well below the 5,000 gallon limit. By using multiple "'six packs", developers effectively side-stepped permit requirements, at least until issuance of 1997 AGO No. 6.
II. BACKGROUND - A PRIMER ON WATER LAW ISSUES.
A. Water Rights Generally - RCW Ch. 90.03, 90.44,
1.Prior Appropriation Doctrine - Priority System - A fundamental principle of irrigation water law is that "First in time is first in right." Rettkowski v. Department of Ecology, 122 Wn.2d 219, 858 P.2d 232 (1993); Hubbard v. Department of Ecology, 86 Wn. App. 119, 936 P.2d 27 (1997).
2.Beneficial Use - Waters appropriated must be applied to beneficial use to perfect a claim of water rights. "An appropriated water right is established and maintained by the purposeful application of a given quantity of water to a beneficial use upon the land." Neubert v. Yakima-Tieton Irrig., 117 Wn.2d 232, 237, 814 P.2d 199 (1991).
3.RCW 90.03.290 - Test for Issuance of Water Rights. Under the WaterCode, Ecology must make four determinations prior to the issuance of a water use permit:
(1) what water, if any, is available;
(2) to what beneficial uses the water is to be applied;
(3) will the appropriation impair existing rights; and
(4) will the appropriation detrimentally affect the public welfare.
Hillis v. Department of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997).
B. RCW 90.44 - Groundwater Code
1.RCW 90.44.050 - Permits Required for Withdrawals of Groundwater.
2.Exceptions to Permit Requirement for withdrawals less than 5,000 gallons per day.
a. Stockwatering purposes
b. Lawn or non-commercial garden watering (< ½ acre)
c.Industrial purposes
d."Single or group domestic uses"
C. Relationship to Surface Waters - Minimum Flows
1.Creation of Water Resource Inventory Areas (WRIAs). Ecology has created 62 WRIAs throughout Washington by administrative rule. Ch. 173-500 through 173-599 WAC. These areas are divided by river drainage basins and adopt plans for resource protection in each basin. These plans include specific minimum flows and closures of specific streams from future appropriation.
2.Ecology's authority to protect minimum flows requires regulation of both diversions of surface water and ground water withdrawals. RCW 90.54.020(3)(a).
3.Minimum Flows established by DOE Rule have priority over new water rights applications. Hubbard at 124.
4.DOE Hydraulic Continuity Policy. Ecology policy is to deny new applications for groundwater withdrawals from aquifers in "hydraulic continuity" with closed surface waters. See Hubbard at 126.
Hubbard relied on the WRIA administrative rule, WAC 173-549-060, which subjected groundwater and surface water with significant "hydraulic continuity" to the same standard. Not all WRIAs have the same standard. For example, in the Deschutes River basin in Thurston County, groundwater appropriations are restricted pursuant to WAC 173-513-050, which provide a different standard:
"Future ground water withdrawal proposals will not be affected by this chapter unless it is verified that such withdrawal would clearly have an adverse impact upon the surface water system contrary to the intent and objectives of this chapter."
5.The ability of Ecology to apply a hydraulic continuity standard in other basins, like the Deschutes, was contested in a recent King County Superior Court case, In re Consolidated Ground Water Cases, King County No. 97-2-17943-2-KNT (Dec. 1997). The Superior Court held that hydraulic continuity alone is not a basis for denying water rights. Ecology must show that each withdrawal would impair senior rights or minimum flows. However, the Court left open the possibility of future APA rulemaking to apply a hydraulic continuity rule state-wide.
D. Administrative Delays in Water Rights Processing.
As of October 1994, there were about 5,000 applications for appropriations of public water filed with DOE. Hillis at 578. At same time, Legislature cut budget for Ecology Water Resource Program, reducing the number of staff available to review permit applications. The resulting delays in processing applications range from 5 to 8 years in the Central Region. Hillis at 379. Other regions experience similar delays.
Ecology's response was to re-prioritize resources devoted to water rights applications. Historically, Ecology reviewed applications on a first-come, first-served basis. In Hillis, Ecology was ordered to proceed by rulemaking under the APA to establish its new priority system. Ecology did so by adopting WAC 173-152, which relies on basin assessments as the principle means for addressing the backlog. See WSR 98-06-042. Some types of applications will be eligible for priority processing, such as those with immediate public health or safety concerns. WAC 173-152-050. Others will likely have to await the completion of basin studies before applications will be processed.
Based on issues such as the number of applications, how long water-right applicants have been awaiting decisions, the amount of water being requested and other key elements described in the rule, during the next 14 months Ecology plans to make decisions in portions of the following areas:
·130·Benton and Klickitat counties, Rock-Glade Horse Heaven-Hills area ·130
·130·Clark County, Salmon Creek and Washougal River ·130
·130 ·Columbia and Garfield counties, Tucannon River ·130
·130 ·Island County ·130
·130 ·Kitsap County ·130
·130 ·Okanogan County, Methow Valley ·130
·130 ·Spokane, Stevens and Lincoln counties, Spokane River ·130
·130·Thurston County, Deschutes River·130
III. THE ATTORNEY GENERAL'S OPINION - 1997 AGO No. 6
On October 10, 1997, the Attorney General's Office issued a formal opinion on the use of "six-packs" or "exempt wells". A copy is attached as Attachment 1. The opinion addressed several issues, but the primary issue was whether multiple "six-packs" are exempt from permit requirements under RCW 90.44.050.
This opinion impacts development proposals which rely on the exempt well approach, using a configuration commonly known as a "six pack". This configuration connects six homes to a single well. Because Department of Health standards allocate 800 gallons per connection, the total withdrawal of such a well is 4,800 gallons. This is less than the 5,000 gallon limit for exempt wells established by RCW 90.44.050. Developers would propose multiple six packs to supply a proposed subdivision with the total number of wells equaling the number of lots divided by six. (e.g. 120 lots = 20 six packs).
The AGO opined that under such circumstances, the developer's use of multiple six packs should be considered a single withdrawal which would require a water right if the total amount of water withdrawn exceeded 5,000 gallons. The opinion also notes that under the six pack scenario:
a single property owner contemplates a single "project" of subdividing land for a housing development. Supplying a development of any size with domestic water will have a significant impact on any ground water system, and you have asked us to assume that the total withdrawal will exceed the statutory maximum of 5000 gallons per day. Given the purposes of the water code, we cannot conclude that the Legislature intended in such case to allow the property owner to escape the permitting requirement merely by slicing the water needs of the development into small pieces with each requiring only an "exempt" withdrawal. If the property owner drilled a single large well to supply the whole development, the withdrawal would clearly not be exempt. Applying the permit requirement should not turn on an artificial choice of drilling several holes in the ground rather than one, where the withdrawal is for a single purpose.
AGO 1997 No. 6, at 6-7. (footnotes omitted).
This portion of the opinion suggests that any withdrawal for a subdivision which exceeds 5,000 gallons requires a water right. However, the AGO also includes language that significantly qualifies the applicability of the opinion, especially if the proposal does not rely on a the developer or other entity to provide water. The opinion states that,
Accordingly, we conclude that where water is withdrawn by a property owner for a single housing development, within a reasonable short period of time, a single "withdrawal" occurs for purposes of applyingRCW 90.44.050 and determining whether the withdrawal requires a water rights permit, no matter how may individual wells or other withdrawal mechanisms are employed.
AGO 1997 No. 6 at 7. (emphasis added).
At this point, the author adds a critical footnote which limits the scope of the AGO to the factual scenario considered (the six pack hypothetical). The footnote states:
Our conclusion is limited to the fact pattern you have specified. If the facts are varied, such as withdrawals independently made by different persons, or a series of separate withdrawals occurring over a long period of time, the answer might well be different.
1997 AGO No. 6 at 7, footnote 7. (emphasis added).
The footnote suggests that the exemption in RCW 90.44.050 may apply in two different factual patterns. First, where withdrawals are made independently by different persons. This suggests that the exemption applies where a plat leaves to the purchasers of individual lots the responsibility for drilling a well to supply water for his residence, which is independent of the actions of other purchasers.
Secondly, the footnote suggests that a developer may phase a development over a long period of time without triggering the need for a water right permit from Ecology. The opinion does not give any guidance as to how long such a time period would be. Therefore, if a developer wishes to obtain approval for Phase I of a development using a single six pack, and leaves approval of subsequent phases for after development and/or sale of the initial phase, that fact pattern may be a "series of separate withdrawals" that remains exempt.
IV. COUNTY OBLIGATIONS REGARDING WATER SUPPLY UNDER SUBDIVISION LAWS
Under RCW 58.17.110, a County must make a finding that there is appropriate provision made for potable water supply prior to approving a preliminary plat application. Prior to approval of a building permit, a county must have a certificate of water availability under RCW 19.27.097. This can be issued from an authorized purveyor (e.g. city water), be issued as a water right from Ecology, or take another form sufficient to verify the existence of an adequate water supply.
Under RCW 58.17.110, it is not required to have a water right prior to approval of development. However, plats may be denied where the available water supply is inadequate to serve a proposed subdivision. Jones v. Town of Woodway, 70 Wn.2d 977, 425 P.2d 904 (1967). A county's analysis of whether an appropriate provision of water has been shown is not dependent merely upon compliance with applicable regulations. Compliance with specific health regulations applicable to a completed development is not required for approval of a preliminary plat. Topping v. Board ofCommissioners, 29 Wn. App. 781, 630 P.2d 1385 (1981); Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023 (1973).
Essentially, the preliminary plat supplies information not specified by regulation or ordinance. Loveless, 82 Wn.2d at 761. Matters which are specified by regulation or ordinance (or statute) need not be considered unless conditions or infirmities appear or exist which would preclude any possibility of approval of the plat. Id. A county may also impose modifications of the plat which are necessary to secure approval, including necessary improvements to water systems or obtaining of water rights. Id.
V.SEPA CONSIDERATION OF WATER ISSUES
Even if a developer's plans to withdraw water for a development project are exempt from water right permit requirements under RCW 90.44.050, a county is nevertheless required to consider whether the project has probable significant environmental impacts under SEPA. If so, a county must consider such impacts, mitigation measures and alternatives in an environmental impact statement. A county may deny a plat application on environmental grounds. Department of Natural Resources v. Thurston County, 92 Wn.2d 656, 601 P.2d 494 (1979).
Under SEPA, a county is required to assess whether a proposed subdivision would adversely impact existing users of water or minimum flows in surface waters. Where there is a proposal to withdraw water from a basin which Ecology has closed to further withdrawals under the water code, it will be difficult to justify a position that a subdivision has no adverse impact. Any significant loss of water to an already depleted watershed will aggravate the conditions that caused the closure of the basin in the first place.
For example, if a development (e.g. 30 lots) were proposed it could use a single well, drill 30 individual wells, or propose 5 "six-packs". The aggregated withdrawal would be roughly 24,000 gallons per day, assuming 800 gallons per connection. To approve such a plat, the developer would still have to show that the 24,000 gallon per day withdrawal did not have a "significant adverse impact" on flows in the closed river basin. This will require extensive geohydrologic studies that evaluate the impacts of the withdrawal. Such a task is daunting for applicants to undertake and may be beyond most county capabilities to review.
This standard is different from the criteria DOE may use to review water rights. Ecology may evaluate whether the aquifer from which water will be used is in "hydraulic continuity" with a closed system. If there is any connection (including a single molecule of water), Ecology will deny the water right application.
SEPA, by contrast, requires a probable, significant, impact. Whether the SEPA standard is met must be evaulated on a case-by-case basis. However, many developers contend that groudwater withdrawals will not have any measurable impact due to recharge. If that is true, it is at least questionable whether a "probable, significant impact" standard can be met by an unmeasurable dimunition in surface water flows.
VI. CERTIFICATE OF WATER AVAILABILITY - GROWTH MANAGEMENT ACT REQUIREMENTS.
In recent years, the Growth Management Act has linked County development responsibilities with water availability issues. RCW 19.27.097 requires proof of a potable water supply prior to issuance of building permits. That statute reads, in relevant part:
"Each applicant for a building permit of a building necessitating potable water shall provide evidence of an adequate water supply for the intended use of the building. Evidence may be in the form of a water right permit from the department of ecology, a letter from an approved water purveyor stating the ability to provide water, or another form sufficient to verify the existence of an adequate water supply. . . . An application for a water right shall not be sufficient proof of an adequate water supply."
In determining what constitutes an "adequate water supply", another Attorney General's Opinion may shed some light. 1992 AGO No. 17 opines that RCW 19.27.097 requires a county to have evidence of an adequate water supply. At a minimum, there must be sufficient quantity and quality of water for the intended purpose of the building. 1992 AGO No. 17 at 1. In making this determination, the 1992 AGO states:
At a minimum, the criteria adopted by the local health department must require that the water supply be potable, and must recognize the effect of the water rights statutes, chapters 90.03 and 90.44 RCW. . . . Consequently, any applicant for a building permit who claims that the building's water will come from surface or ground waters of the state, other than from a public water system, must prove that he has a right to take such water.
1992 AGO No. 17 at 10-11.
It is important to note that RCW 19.27.097 does not apply at the platting stage of development. Thus, RCW 19.27.097 does not require evidence of a water right until application for a building permit is made.
VII. REACTION TO 1997 AGO NO. 6
A. Key Issues for Counties
1."Pipeline Projects" - Are plats which were filed prior to the AGO entitled to a vested right to use six pack wells under the prior interpretation of the exemption?
2.Single Family Wells - Reliance on individuals to install their own wells to provide water supply.
3.Impact on Rural Clustering Strategies adopted under Growth Management Act. If single family wells remain exempt, developers will have a strong incentive to avoid "clusters" which allow smaller lots in exchange for preservation of open space or critical areas. Most of these small lots cannot accommodate their own wells because of the requirement for a 100 foot buffer zone around the wellhead.
B. Ecology Interpretation of the AGO.
1. FOCUS Sheet. Attachment 2.
In response to the AGO, Ecology published a "FOCUS" sheet to explain its understanding and future application to development projects. This came immediately following the issuance of the AGO and sheds little light on how Ecology will interpret or apply the opinion
2. Definition of "Project".
Ecology is attempting to define what a "project:" is to which the AGO applies. The latest indications from Ecology are that it will consider any development "project", including plats and large lot subdivisions under local platting ordinances, to be a single "project" which will require a water right if the total use of water exceeds 5,000 gallons.
Ecology's interpretation of "project" may parallel the definition of "proposal" under SEPA. This would broaden the application of the AGO beyond the immediate scope of a development proposal so it is not broken into segments in order to avoid compliance with water rights requirements.
3. Retroactive Application
Initially, Ecology regional staff told applicants within subdivisions previously approved with "exempt" six pack wells that any new building permits would now require a water right. Ecology has backed away from that position somewhat. In a recent letter to the attorney for the Chelan-Douglas Board of Health, Ecology stated that it currently as no plans to take unilateral enforcement action against "any existing nonexpanding developments for lack of adequate water rights" under the AGO. Copies of the correspondence between the CDBOH and DOE are attached as Attachment 3.
4. WSAC Work Group / Legislative Relief
Ecology and WSAC have formed a working group to address possible legislative solutions and implementation issues. That group is still in its formative stages. Paul Parker from WSAC is coordinating the counties' position.
C. Reaction from the Development Community
1.HB 3106. In an effort to combat the AGO, a bill was drafted which would have adopted the AGO's interpretation of a withdrawal. HB 3106 was defeated by the state House in February 1998 by a vote of 66-31.
The opinions of later legislators in construing a prior statute should be viewed cautiously. Courts have been very reluctant to overturn a construction of a statute in the face of legislative inaction. Buchanan v. Int'l Bhd. of Teamsters, 94 Wn.2d 508, 617 P.2d 1004 (1980). The defeat of HB 3106 could indicate that the Legislature approves of the AGO's interpretation and considers amendment unnecessary. In any event, its defeat is only indicative of the position of one house of the legislature, some 47 years after the original statute was adopted. It sheds no light on the legislative intent behind the exemption in RCW 90.44.050.
2. White Paper to Oppose AGO (Table of Contents attached as Attachment 4)
a. Argues that six packs are unambiguously exempt under RCW 90.44.050.
b.Argues that AGO is contrary to historic interpretation of exemption by Ecology.
c.Argues that AGO is illegal rule-making in violation of APA.
D. Recent Developments
1. Survey of Planning Directors - Attachment 5.
2. Thurston County Policy - Attachment 6
a. Applies AGO to plats with single or multiple public water systems (i.e. six packs)
b. Requires SEPA analysis of groundwater quantity and impacts on surface water or adjacent wells to determine if "probable, significant impact" is likely.
c. Recognizes exemption for developments with proposed single family wells.
d. Promotes Rural Clustering by giving credit for water savings mitigation measures in rural clusters.
Related Resources
MRSC Index – Water rights, water permits