What is the Issue?

The issue is the use and impact of exempt wells on water resources in the Chehalis Basin.

What are some important laws, rules, and opinions, and court decisions related to exempt wells?

Washington State's Groundwater Code, RCW 90.44.050 :

This law requires anyone who wants to withdraw public groundwater to apply for a permit through the State Department of Ecology (Ecology). The Code allows exceptions for certain specific uses:

• Stock watering (Note: Amounts used for this purpose may exceed 5,000 gallons per day.)
• Watering a lawn or non-commercial garden not exceeding one-half acre in area
• Single or group domestic uses of up to 5,000 gallons per day1
• Industrial use not to exceed 5,000 gallons per day

  Additionally, the Code states that:

• Water used under this exemption must regularly be used beneficially.
• Ecology may require the water user to furnish information as to the means for and the quantity of that withdrawal.

  Wells drilled under this provision are commonly referred to as "exempt wells." The exempt well statute provides a means by which landowners may access water for domestic purposes, including small-scale irrigation and industrial purposes, without applying for and obtaining a water right through Ecology. The exemption saves the appropriator of "small withdrawals" the trouble and expense of applying for a permit where the impact of the withdrawal is slight and saves the state the trouble and expense of processing applications for "small withdrawals" that would have little effect on water availability.

  While small withdrawals are exempt from the requirements that an application be made and a permit received from Ecology prior to withdrawal of public groundwater, they are not exempt from any of the other substantive provisions of the Ground Water Code. For example, small withdrawals

• Cannot affect surface water rights
• Must be beneficially used.
• Are subject to the same system of priorities as all other appropiators (that is, where another right is first in time, it is first in right)

  Attorney General's Opinion:

  In the 1990s, the Departments of Ecology and Health requested the opinion of the Washington State Office of the Attorney General regarding exempt ground water withdrawals to settle differences of opinion among various parties about the intent and meaning of the exemption. The resulting Attorney General's opinion states that a project that will use more than 5,000 gallons of water per day will need a permit, regardless of the number of wells that would be tapped.2

  Campbell & Gwinn Supreme Court Decision

  The Washington Supreme Court supported this opinion in its 2002 decision that housing developments that would be served by multiple drinking-water wells need a water-right permit before construction begins if the wells together would withdraw more than 5,000 gallons a day. The court ruled that when homes are part of a development they should be treated as one group under the exemption. In its decision, the court said, "The Legislature did not intend unlimited use of the exemption for domestic uses, and did not intend that water appropriation for such uses be wholly unregulated."

  The Chehalis Instream Resource Protection Program (IRPP) rule WAC 173-522-040 (1)

  This rule states, in part, that "Rights for domestic use, including irrigation of lawn and noncommercial garden not to exceed one-half acre, and livestock use excluding feedlot operation, shall be superior to all other consumptive and non-consumptive uses." This appears to conflict with the1945 Groundwater Law provision that small withdrawals cannot affect surface water rights and that exempt wells are subject to the same system of priorities as all other appropriators. This important conflict needs to be resolved in the Chehalis Basin.

  Why are exempt wells a concern?

  Exempt wells affect water quantity, a required element of watershed planning. They can also impact the three remaining elements in the Chehalis Basin Watershed Plan: water quality, habitat, and instream flows. The concern is that the proliferation of exempt wells could reduce the total amount of water available in the Chehalis Basin. In particular, exempt wells and the associated uses can reduce

• water available to senior water right holders,
• the amount of water available for aquifer recharge, and
• instream flows.

  By withdrawing ground water, exempt wells can also negatively affect water quality and habitat.

  Ground water pumping affects the relationship between ground water and surface water sources. It may intercept water otherwise available to recharge a stream or capture water from the stream itself. A watershed assessment conducted by Ecology in 1995 confirmed the hydraulic continuity between ground and surface water in the Chehalis Basin and concluded that a large portion (if not most) of the ground water allocated since 1975 directly affected surface water flows. The construction of exempt wells in aquifers that are in hydraulic continuity with flow impaired surface waters will directly result in further depletion of surface water flows.

  Studies conducted by the U.S. Geological Survey and Ecology, coupled with data from local governmental agencies, reveal the following health concerns associated with exempt wells:

• Exempt wells can be contaminated by withdrawal of water from contaminated aquifers.
• Pumping can cause saltwater intrusion along the coast.
• Nitrates from agriculture can contaminate the groundwater.
• Exempt wells are also quite susceptible to contamination from wastewater, typically septic tank/leach field systems. The proliferation of exempt wells has exacerbated this public health problem.

  What is the effect of exempt wells on water quantity in the Chehalis Basin?

  At present, information related to the number of exempt wells in the Chehalis Basin is limited. However, technical work completed as part of the watershed planning process provided estimates of the number of households on exempt wells, the amount of average annual daily water use per household and associated consumptive use (that is, water that is not returned to ground water after use), and the overall impact of exempt wells on water quantity and instream flows in the basin. GIS information indicates high concentrations of exempt wells in areas where stream flows already do not meet regulatory minimums; these wells may have an impact on stream flows.

  Figure 1. Exempt Well Consumptive Water Use illustrates the amount of water typically used for various household activities. It also illustrates the amount of water that is consumed, or does not make it back to groundwater after use, by a household that draws water from an exempt well and returns water through a septic system and drain field. This daily household water use estimate was based on the assumptions that indoor and outdoor water use represent 59% and 41%, respectively, and that 87% of the indoor water use and 57% of the outdoor water use make it back into the groundwater.

  The consumptive water use illustration is an estimate of the average water used by rural households in the basin. (Because data are not available, this estimate does not include water used for irrigated agriculture, stock watering, or industry.) In general, indoor water use remains consistent throughout the year. Households typically do not use water for irrigation in the winter but they do in the summer. The numbers in the illustrations are based on year-round usage; that is, over a 12-month period, the low winter usage is averaged with higher summer usage.

  Exempt well usage and its impact on stream flows is a complex hydrogeologic issue. There is little information available about the specific impact of exempt wells on stream flows. To fully understand the dynamic, site-specific studies and analysis would be necessary.

  Figure 2. Map of Distribution of Exempt Wells in Chehalis Basin shows the boundaries of the public water systems and a range of numbers of households on exempt wells in each sub-basin.

  The number of households on exempt wells was estimated by WRIA and sub-basin in the following manner:3 For regions outside water purveyor service areas, the population was estimated on a density per acre basis; this estimated population was divided by 2.5 persons per household to determine the number of households per sub-basin not on a public water system. For these households outside of water purveyor service areas, an estimate was made of the number of households that have an Ecology-issued water right. Then, this number was subtracted from the total number of unserved households to develop an estimated number of households on exempt wells.

  Not included in online version: FIGURE 1: Estimated Consumptive Water Use of Household on Exempt Well4

  Not included in online version:FIGURE 2: Exempt Well Distribution in Chehalis Basin

  Estimated Households on Exempt Wells and Related Water Use in Chehalis Basin

  An estimated 16,947 households draw water from exempt wells in the Chehalis Basin. (See Table 1.)

  Average amount of water use per household

  Estimated across the entire Chehalis basin over the course of a whole year, an average residential household uses approximately 334 gallons per day (gpd) of water on an annual basis. However, average daily use can rise to unknown amounts of water. Based on Department of Health figures, however, it is assumed that total household summer use might rise to the range of 700 gpd of water (period of highest use).

  Amount of consumptive water use per household

  For households on exempt wells, approximately 85 gpd (of the 334 gpd used) or about 25% of the average water used, is estimated not to return to the aquifer. This 85 gpd is often called consumptive water use. This means that, on average, 85 gpd of the water drawn from the exempt well does not return to the water source (ground or surface water).

  Amount of household water use and consumptive water use from exempt wells in Chehalis Basin

  The 16,947 households on exempt wells in the Chehalis Basin use an estimated 5,660,298 gpd (8.25 cfs) of water, of which, 1,440,495 gpd (2.23 cfs) or 25% is consumptive water use. PLEASE NOTE: this estimate does not include agricultural, industrial, commercial or stock watering uses. This quantity may appear insignificant when looking at the basin as a whole, especially considering that the Chehalis River summer flow is in the 300 to 400 cfs range. However, impacts of exempt well usage on specific subbasins can be significant, as shown by the following two examples:

• In the Salzer Creek subbasin, average daily Salzer Creek flows in August drop to the 0.033- 0.085 cfs range, meaning the creek is nearly dry. There are an estimated 310 exempt wells in the Salzer Creek subbasin. Assuming that these exempt wells would be used for indoor and outdoor domestic supply during this period and that an estimated 700 gpd of water would be used during the higher usage months of the summer, the resultant total withdrawal rate would be equivalent to 0.33 cfs from exempt wells, 10 times the lowest average daily flows. If consumptive water use is looked at, this would equate to 0.08 cfs, still a high percentage of the streamflow in the subbasin.
• In the Black River subbasin, average Black River daily flows in August and September range from 10.4 - 21.2 cfs. There are an estimated 2,400 exempt wells in the Black River subbasin. Using a 700 gpd (higher summer water usage amount) withdrawal per exempt well would equate to a withdrawal rate of 2.6 cfs. Using a simplistic comparison approach, the estimated exempt well withdrawal rate is equal to between 10 and 25% of the average Black River flow during this period. For consumptive water use amounts, this would equate to 2.5 to 6.0% of the average Black River streamflow. Note that the Black River flow information is from a gauging station located 10 miles upstream from the bottom of the basin.

Table 1: Estimated Population and Households Served by Public Water Systems, Water Rights and Exempt Wells

-	Lower Chehalis	Upper Chehalis	Lower/Upper Chehalis
Estimated Total Population	62,452	78,779	141,231
Estimated Population Served by Public Water System	36,427	38,064	74,491
Estimated Population Not Served by Public Water System	26,025	40,715	66,740
Estimated Households Not Served by Public Water System	10,844	16,965	27,809
Estimated Households Served by Water Right	3,013	7,849	10,862
Estimated Households Served by Exempt Wells	7,831	9,116	16,947

-

Table 2: Streamflow - Water Use Comparison Table

Summer Stream Flow	(in cfs)	Exempt Well Water Use Whole Basin	(Using 700 gpd high summer use volume)	Exempt Well Water Use Salzer Creek Basin	(Using 700 gpd high summer use volume)	Exempt Well Water Use Black River	(Using 700 gpd high summer use volume)
-	-	Total Use	Consumed	Total Use	Consumed	Total Use	Consumed
Chehalis	300-400	17.29 cfs (average of 5% of streamflow)	4.67 cfs (average of 1.3% of streamflow)	NA	NA	NA	NA
Salzer	0.033 - 0.085	17.29 cfs	4.67 cfs	0.33 cfs (average of 600% of streamflow)	0.083 cfs (average of 166% of streamflow)	NA	NA
Black	10.4 - 21.2	17.29 cfs	4.67 cfs	NA	NA	2.6 cfs (average of 5% of streamflow	0.65 cfs (average of 4% of streamflow)
-	-	-	-	-	-	-	-

The results of Table 2 indicate that, while the total Chehalis Basin's exempt well water use is fairly small compared to the Chehalis River flow, the estimated exempt well use in some subbasins could be a much more significant percentage of the subbasin streams. For instance, it is a very significant factor in Salzer Creek but less of a factor in Black River. Consequently, use of exempt wells in specific subasins may need to be considered in terms of their impact on instream flows, both now and in the future.

What are possible solutions?

The CBP evaluated the following options related to exempt wells, arrayed from least to most complex to implement.

Alternative Solutions	Expected Outcomes	Comments
Status Quo	Continued use of existing exempt wells, Proliferation of new exempt wells, Lack of focus on community systems	-
White Paper on proliferation of exempt wells vs. community systems	Providing policy makers with information on the impacts of exempt wells, especially on ability to manage growth	-
Study of the quantity of water loss Collect data to refine consumptive use estimates and assess the effect on the timing of use.	Development of understanding of consumptive use levels of exempt wells to better understand impacts on base flows	-
Request that Ecology address the exempt well issue on a statewide basis	Statewide consistency in addressing exempt wells, both existing systems and future wells	-
Allow exempt wells with conditions. Some suggestions to consider include: Set basin-wide standard for number of houses allowable per exempt well Reduce exemption amount from 5,000 gpd, since most homes use only 3-400gpd (WA Dept. of Health allotment is 800 gpd for development) Require septic tank/leach field discharge back to aquifer Conserve water Limit numbers to one septic field or equivalent residential unit per exempt well Define allowable consumptive use Require exempt wells to connect to deep aquifers OR allow connection to shallow ones if study is done to show no negative impact on stream flows Others?	Ability to use exempt wells but with conditions that will lessen losses of water and depletion of stream flows	The real question remains : How do we encourage new residents to use purveyor systems instead of exempt wells when new residents cannot get onto a purveyor system in a reasonable time frame (i.e. planned and coordinated growth, including impacts on environment)
For exempt well problem areas, identify/develop mitigation (e.g. convert to public water system)	Lessening of impact on stream flows	-
Identify a density trigger where exempt wells are not allowed above a certain level (What level is trigger?)	Control of number of exempt wells and therefore shifting of focus to community systems	Relate to stream flow levels?
Prohibit exempt wells in closed basins	Assurance that exempt wells will not negatively impact stream flows	-
Do not allow new exempt wells through regulatory approach or stipulation that UGA's/Growth areas would not allow exempt wells	Focus on community systems Better focus on drinking water quality Better focus on growth controls	Property takings would be an issue

Recommendations

1. Until the steps below are taken, maintain the status quo with regard to exempt wells.
2. The CBP believes that exempt wells are a statewide issue, caused in part by many inconsistencies and conflicts in existing laws and requirements, and the Attorney General's 1998 opinion on exempt wells, as well as a lack of enforcement. The CBP therefore recommends that Ecology address the exempt well issue on a statewide basis following the existing laws, rules, and opinions. (See bullets below.)
3. Alternative solution 4 above is the prime recommendation from the Chehalis Basin.
   • Regulations:
     1. State enforce current regulations, including addressing any excessive uses of exempt wells and situations that conflict with the Attorney General's opinion
     2. Evaluate current regulations on exempt wells for adequacy in protecting surface waters (quantity and quality)
   • Clarify and resolve the science around the impacts of exempt wells on surface water
   • If local governments are to have a role in managing exempt wells, State resources must be allocated for this
   • The CBP suggests the following actions for ECOLOGY to consider in its evaluation of the exempt wells statewide:
     1. Ecology should conduct its evaluation in an open process involving stakeholders
     2. Ecology should sponsor subregional and regional workshops on exempt wells, leading to a Statewide workshop/Forum/Task Force on exempt wells to better quantify technical aspects of exempt wells and to identify policy and cost factors related to exempt wells
     3. Ecology should develop an educational program related to the use of exempt wells and their potential impact on instream flows and water quality
     4. Ecology should develop criteria for when it will require use of deeper aquifers as a source of exempt well water. If deeper aquifers are used for household use, shallow aquifers would be available to supplement stream flows.
     5. Ecology should address the timing of withdrawals and the possibility or requirement that withdrawals minimize impacts on stream flows
4. The CBP believes that the Department of Health should prepare a white paper that compares use of exempt wells vs use of community water systems. In particular, it should address the benefits that community water systems have from a water quality perspective.
5. The CBP believes that a conflict exists among the 1945 Groundwater Law, the Attorney General's opinion, and the Chehalis IRPP as to whether small withdrawals can affect surface water rights and whether they are subject to the same system of priorities as all other appropriators. The CBP recommends that Ecology or the Attorney General's office address this conflict in the Chehalis Basin.
6. The CBP has discussed exempt wells and its members have widely divergent opinions on whether or not exempt wells are a concern. Some believe that exempt wells have minimal impact while others believe that exempt wells have or will have an impact, especially on stream flows.

   Nonetheless, from the data analysis that shows that there may be concerns with exempt wells in certain subbasins and from the belief that in other basins that future conditions may give rise to concerns, the CBP has agreed to recommend the following:

Footnotes

1 "Attorney General Issues New Guidelines on Exempt Wells," The Confluence, Ecology Newsletter, Winter/Spring 1998.

2 The following sources were used in the process described above:

• úGIS maps from Lewis, Thurston, and Grays Harbor Counties and hard copy maps from a number of water districts. Where boundary information was not available, estimated boundaries were developed based on incorporated area, urban growth area, or aerial photographs.
• úWRATs (spell out) data, section and sub-basin GIS maps, shape files of priority one group rights, and other base map shape files from EPA
• ú2000 Census GIS maps from the State Department of Health and State Office of Financial Management
• úMaps of wells from Department of Health and Lewis County (these were examined but not used??)
• úLevel 1 Assessment report information
• úAerial photographs and other GIS data from Chehalis Basin Partnership

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