Background:

Permit Exempt Wells.

Most groundwater withdrawals require an application and permit from The Department of Ecology (Ecology). However, there is a class of lawful, unpermitted wells, often referred to as "permit-exempt wells," which may be constructed and used without first obtaining a permit from Ecology.

Exemptions from the permitting requirement include any withdrawal of public groundwater for stock-watering purposes, or for watering a lawn or a noncommercial garden less than one-half acre. Single or group domestic uses or industrial purposes in an amount not exceeding 5,000 gallons per day are also included in the class of permit exempt wells.

Ecology has exercised authority in certain regions of the state to limit the availability of new permit exempt wells. This includes agency rules applicable to portions of Skagit, Kittitas, Clallam, and Jefferson counties.

Instream Flow Rules.

Perennial rivers and streams of the state must maintain base flows necessary to provide protection for the fish, wildlife, and recreational and aesthetic values of the waterways. Withdrawals that conflict with the base flows may only be authorized if the withdrawal serves an overriding consideration of public interest (OCPI). Additionally, Ecology has the authority to adopt rules establishing a minimum water flow for streams, lakes, or other public water bodies for the purposes of protecting fish, game, birds, and the recreational and aesthetic values of the waterways. These levels, commonly called "instream flows," essentially function as water rights with a priority date set at the adoption date of the corresponding rule. There is an instream flow rule in place for almost half of the state's watersheds.

Per statute, the instream flow may not affect an existing water right with a senior time priority date. Ecology may not allow any subsequent water withdrawals with a junior priority date to the instream flow that conflicts with the established flow level unless the withdrawals clearly serve to satisfy an OCPI. Recent state Supreme Court decisions found that Ecology improperly applied the OCPI standard in certain instances.

Growth Management Act.

The Growth Management Act (GMA) is the comprehensive land use planning framework for counties and cities in Washington. Originally enacted in 1990 and 1991, the GMA establishes land use designation and environmental protection requirements for all Washington counties and cities, and a significantly wider array of planning duties for the 29 counties and the cities within that are obligated by mandate or choice to satisfy all planning requirements of the GMA. Of the 29 counties and the cities within that fully plan under the GMA, 18 were required by population criteria to become planning jurisdictions. The remaining 11 counties elected through a resolution of their county legislative authority to have all planning requirements of the GMA apply to them and to the cities within.

As established in the GMA, all counties and cities must also designate and protect environmentally sensitive critical areas. These requirements obligate local governments, using the best available science, to adopt development regulations to protect critical areas (also known as critical areas ordinances) that comply with specified criteria. Critical areas include: wetlands; aquifer recharge areas; fish and wildlife habitat conservation areas; frequently flooded areas; and geologically hazardous areas. The Department of Commerce provides technical and financial assistance to jurisdictions that must implement requirements of the GMA.

Each comprehensive plan adopted by a county or city must include seven mandatory elements consisting of a plan, scheme, or design. Two of the seven mandatory elements contain provisions addressing the protection of water resources: The land use element and the rural element. Specifically, the land use element must provide for the protection of the quality and quantity of groundwater use for public water supplies, and the rural element must include measures that protect the rural character of an area by protecting surface and groundwater resources. A recent state Supreme Court decision held that a county must make an independent determination regarding the legal availability of water instead of relying on Ecology rules.

Counties that fully plan under the GMA must designate urban growth areas, areas within which urban growth must be encouraged and outside of which growth can occur only if it is not urban in nature. These fully planning counties and each city within must include in their urban growth areas, areas and densities that are sufficient to permit the urban growth projected to occur in the county or city for the succeeding 20-year period.