WSR 97-21-080

ATTORNEY GENERAL OPINION

Cite as: AGO 1997 No. 6

[October 10, 1997]

water - water rights - wells - Status in water rights system of exempt ground water withdrawals.

1. Where a property owner wishes to develop land and supply the development with domestic water from several wells, and each well will pump less than 5000 gallons per day but all the wells together will pump more than 5000 gallons per day, the project is a single withdrawal of ground water and is not exempt from the permit requirements of chapters 90.44 and 90.03 RCW.

2. There is no statutory provision for intertying, pursuant to RCW 90.03.383, water systems deriving from ground water withdrawals which were exempt from permitting pursuant to RCW 90.44.050; the intertie statute could be applied if the exempt withdrawals applied for a permit, or were consolidated (pursuant to Laws of 1997, ch. 446) with another water right with a permit or certificate.

3. If the owner of a water right deriving from an exempt ground water withdrawal applies for a permit for the withdrawal pursuant to RCW 90.44.050, the Department of Ecology would apply the four-element test contained in RCW 90.03.290 in deciding whether to grant a permit.

4. There is no statutory or other lawful basis for issuing a water rights certificate to the holder of a water right based on an exempt ground water withdrawal, unless either (1) the owner of the right applies for and receives a permit or (2) the exempt right is first consolidated with a right covered by a permit or certificate.

5. There is no current statutory authority for transferring a water right deriving from an exempt ground water withdrawal to a different place of use and/or a different purpose of use pursuant to RCW 90.44.100, RCW 90.03.380 and related laws, unless (1) the owner of the right applies for and receives a permit or (2) the exempt right is first consolidated with a right covered by a permit or certificate.

Requested by:

The Honorable Tom Fitzsimmons

Director, Department of Ecology

300 Desmond Drive

P.O. Box 47600

Lacey, WA 98504-7600

The Honorable Bruce Miyahara

Secretary, Department of Health

1112 S.E. Quince Street

P.O. Box 47890