State attorney general backs water-use limits

YAKIMA — An opinion by the state Attorney General's Office says the Department of Ecology has authority to halt new groundwater appropriations, upholding a temporary moratorium on new wells in upper Kittitas County.

At issue are the unpermitted wells that developers and property owners have been using to tap into groundwater to build new homes. State officials banned construction of the so-called exempt wells in July for 120 days, concerned that the newcomers could be impairing senior water rights and stream flows.

State and county officials had been working to reach a water-management agreement there but asked Attorney General Rob McKenna to weigh in.

Under Monday's opinion, written by Deputy Solicitor General Jeffrey Even, the state can halt new groundwater appropriations for both permitted and exempt wells. However, the opinion says, the state can't impose lower limits on how much water may be drawn from exempt wells than is already allowed under state law.

The state groundwater code of 1945 allows some wells to be drilled without a permit. Up to 5,000 gallons per day may be used for small-industrial or domestic uses. An unlimited amount of water from exempt wells may also be used to water livestock and for noncommercial watering of a half-acre lawn or garden.

Ecology officials had proposed combining domestic use and watering of a lawn, to be capped at 5,000 gallons per day. County officials countered that Ecology could not create a new definition of domestic water use.

Paul Jewell, Kittitas County commissioner, said county officials were pleased that the opinion confirmed their position on domestic water use. County attorneys were further reviewing the opinion, he said.

Ken Slattery, Ecology's water-resources-program manager, said the latest opinion was in line with a 2005 opinion that found Ecology could not limit stock watering at 5,000 gallons per day.

"We're perhaps a little disappointed that it further limits our options, but it doesn't come as a huge surprise," he said. "And we're very happy that it doesn't undermine the current emergency rule that we think is necessary to keep a lid on things until a permanent decision is made."

On Tuesday, the U.S. Geological Survey issued its 10th study of groundwater in the basin, which is part of a larger effort to understand how groundwater withdrawals affect surface-water supplies.

The latest report showed groundwater levels in some areas have declined by 10 to 20 feet. In deeper confined aquifers, pumping has reduced water levels by as much as 300 feet.

Groundwater levels in sedimentary aquifers, generally located near rivers and streams, remained fairly steady over the past 50 years, largely because of recharge from surface water and irrigation seepage, the study said. But that water cannot be considered available for new uses because it must be used to meet existing downstream water rights.