If I already have a water right, will a rule affect me?
Once adopted, an instream flow rule only affects water right decisions made after the adoption date. The rule will not affect:
- existing or "senior" water rights
- existing permit-exempt withdrawls (wells)
- people currently supplied by municipal or community water systems.
(Water for People, Farms and Fish. A Community Forum: Managing Water in Your Watershed. Washington State Department of Ecology, May 15 and 16, 2007)
From my private well, do I always have rights to 5,000 gallons per day?
The state groundwater laws allow for certain uses of water from a private well without obtaining a permit or certificate. These wells are commonly called "exempt wells". These uses include domestic or industrial (agriculture) at up to 5,000 gallons per day, up to 1/2 acre in area for a lawn or non-commercial garden, and an unlimited amount for stock watering purposes.
However, it is important to understand that there is not an absolute right to always use a 5,000 gpd domestic exemption. Under a number of circumstances, uses of water under the exemption may be curtailed or not allowed. The 2005 Attorney General Opinion on stock watering specifically addresses the question whether Ecology may use other legal authorities to limit or restrict use of exemption. The following material is quoted directly from the opinion:
Although Ecology lacks authority to categorically limit the amount of water that may be withdrawn for stock-watering purposes without a permit, other statutes that authorize Ecology to regulate the use of water may affect withdrawals for stock-watering, just as they may affect other exempt withdrawals and withdrawals requiring a permit. For example, in Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 94-95, 11 P.3d 726 (2000), the Supreme Court held that where Ecology has closed water bodies and ground water in hydraulic continuity with such bodies to new withdrawals, it may prohibit new withdrawals that “will have any effect on the flow or level of the surface water.” Such a new withdrawal might be a new withdrawal for stock-watering or it might be a new withdrawal for some other purpose. As a second example, consistent with principles of prior appropriation, Ecology has authority under RCW 90.44.130 “to limit withdrawals by appropriators of ground water so as to enforce the maintenance of a safe sustaining yield from the ground water body.” See also RCW 18.104.040(4)(g), authorizing Ecology to limit well construction in areas “requiring intensive control of withdrawals in the interests of sound management of the ground water resource.” Depending on the specific facts and circumstances, then, these statutes could affect withdrawals for stock-watering purposes, just as they could affect withdrawals for other purposes (AG0 2005, No. 17, pp. 7-8).
In the case of the proposed Walla Walla instream flow rule and other instream flow rules that have been established, Ecology has limited or closed uses of the exemption under these authorities to protect existing water rights and instream flow rights.
Further, an exempt use is a water right with a priority date like other water rights. If use an exempt right would impair any senior water right (which includes instream flow rights), such use would be subject to regulation. The actual water right associated with the well is determined by the amount of water put to a beneficial use. So in the future if a judicial review of all water rights (an adjudication) were to occur, and water availability was limited, the private well user would probably have a right to the amount beneficially used and a seniority date tied to the first use of the water. A similar analysis might take place by a judge if a neighbor claimed to have a senior water right which was being impaired by the private well.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Am I going to be required to meter my water?
State water laws allow Ecology to require metering of water use. Metering is currently required for all new water rights and all new changes to water rights. Ecology was recently sued by a number of environmental and fisheries protection groups for not aggressively using metering to measure water use. A judge agreed to this assertion and as a result, Ecology committed to set up a metering program which measures 80% of water use in 16 watersheds where fish were threatened and water was sometimes scarce. The Quilcene-Snow Watershed was one of the 16. Ecology is currently working with a number of water users in the area to install these meters.
Additional metering of water, above what is described above for the Quilcene-Snow Watershed is not immediately anticipated. Water management discussions to date related to the instream flow rule and/or watershed planning have begun to explore the possibility of additional metering, either as a voluntary approach or a regulatory requirement. No new decisions have been made yet.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
What am I risking by withdrawing water illegally?
Like breaking any law, the risks could include a range of responses by regulatory agencies from the issuance of formal orders to stop illegal use, up to, and including monetary penalties. Ecology is directed to escalate the response to illegal use, starting with investigations, then moving to warnings, then to "cease use" orders and finally the use of penalties if all other warnings fail. When Ecology is considering a report of illegal water use, the agency response is built around a consideration of various factors including:
- the extent that there is legal authorization lacking to use the water (does the person have a permit, certificate or claim? Is a permit exempt well in use?)
- how much water is being used?;
- is there impairment to a senior water user or instream flow?
- is water availability limited?
A resulting regulatory response by the agency will be based on the answers to these and other questions.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Will this instream flow rule threaten my water rights or private property rights?
An instream flow rule establishes a water right for instream resources. The water right has a seniority date established at the time the rule is finally issued. So an instream flow rule would be a junior water right to all water currently being put to beneficial use via a permit, certificate, claim or permit-exempt well. Those senior water rights will not be affected by the junior right established in the instream flow rule.
However, instream flow rules also deal with water availability. If water is determined to be unavailable in some parts of a watershed, the instream flow rule may contain regulatory limits on the use of new water, including the issuance of new water rights or the use of permit-exempt wells. When necessary, the limits placed on new water use by instream flow rules have been developed based on local needs to protect fish while providing support for people and their communities.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Can Ecology take my land for its water right?
No, Ecology cannot take private lands as a result of instream flow rules or water management.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Can the government seize my water right or otherwise turn it off?
Ecology is responsible for managing the state's waters. An individual is granted the right to use those waters if:
- the water is put to a beneficial use and that use is not discontinued (except for some exceptions) for 5 years or longer;
- the water is available;
- there is no impairment of a senior water right holder; and
- the use is deemed to be in the public interest.
As long as a water right holder meets those four tests, he/she can continue to use the waters of the state. If a water user should stop using some/all of their water right (for reasons other than the exceptions provided by law) for more than five years, the state may relinquish that water right so the next water user waiting in line can put the water to use.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
I want to farm, how do I get a water right?
The traditional answer to this question would have been to submit an application for a new water right. For the past 20 years or so, that response has become less and less viable. Water availability across the state continues to become more limited. New water rights are usually not readily available.
More and more emphasis is being placed on developing new approaches to water availability. Some examples include:
- building market based process or "water banks" for willing buyers and sellers of water rights;
- developing storage to provide water during the summer and fall;
- conserving water so more uses or users can be accommodated;
- creating local entities who share water.
Check with your local Ecology office to explore opportunities for new water rights or the status of other availability approaches.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
What if I have an exempt well and I need to use more than 5,000 gallons per day during certain times of the year? What are my options?
A plain reading of the water law associated with exempt well use allows for 5,000 gallons per day for domestic and industrial (agricultural) use. There is no provision in the law that allows for averaging water use over an irrigation season or year, etc. Your options might include approaches to increasing water availability as described in the answer to the question above.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
How do I acquire a water right?
New water rights are issued on a limited basis across the state often due to the increased lack of water availability. Check with your regional Ecology Office for details.
There are several options for acquiring a water right. Water rights can be purchased or leased from other water right holders. Use of those new rights would have to meet legal requirements and be approved by Ecology.
There are also ways to involve a private contractor to process traditional water right applications. Again, check with the regional Ecology Office for details.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
How do I prove that I’m using my water?
The beneficial use of water can be established by keeping metering records, diversion records and/or electricity use by a pump, etc. There are also less direct but effective ways to prove water use such as aerial photography, statements from neighbors, records of crop types grown, etc.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Where do I get a water meter?
Water meters are available from commercial vendors. Ecology may be able to provide technical assistance and/or funding support upon request.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Will completion of the instream flow rule make it more difficult to get a water right in the future?
New water rights have been issued on a limited basis in the Quilcene-Snow Watershed for a number of decades. The instream flow rule will probably not significantly increase or decrease the number of new permits issued but may serve to establish clearer expectations about where and when and how new water rights might be available. For example, the rule will include determinations as to water availability in various parts of the watershed. The rule may describe details as to how water rights might be conditioned related to availability or how the water might be managed. It is important for the public to work closely with Ecology as the rule is developed so that it is the result of our "best thinking."
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Is rainwater use restricted? Do I need a permit to use rainwater?
Please see Ecology's new rain catchment fact sheet at: http://www.ecy.wa.gov/programs/wr/nwro/sjc_rwc.html.
Do I need a water right to water an orchard?
Generally, yes unless your orchard can be watered with 5,000 gallons per day or less.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
Why isn’t Ecology promoting more conservation as a way to meet our area’s future water needs?
Ecology actively supports water conservation through a variety of venues and funding programs. These include conservation investments, irrigation efficiency programs, water conveyance improvements, instream flow rules, water conservation rulemaking and watershed planning. If you are interested in learning more about these efforts, please contact Ecology.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology
What is the legislature doing to clarify water rights statewide?
Changes to water management policy is usually an active and controversial part of each legislative session. Over the past ten years, new water policy ideas have been included in as many as 50 or 60 statute proposals each year. A lot of recent attention has been on ideas to improve stream flows, bringing certainty to municipal water suppliers, improvements to water relinquishment provisions and support for watershed planning. Clarifying water right status through improved adjudication processes has also received increased attention.
A major policy bill intended to improve water management along the Columbia River passed during the 2006 session and another significant bill related to improving the quality of the waters entering Puget Sound passed during the 2007 session. Both of these bills are actively being implemented.
-Joe Stohr, Water Resources Program Manager, Washington State Department of Ecology