Exempt Wells in the Courts,
Agencies and Legislatures
Jesse J. Richardson, Jr.
Policy and Research Advisor
Water Systems Council
Washington, D.C.
Associate Professor, Virginia Tech
Oregon Water Conference
Corvallis, Oregon
May 25, 2011
www.watersystemscouncil.org
Overview
•Exempt Wells Generally
•Water Systems Council publication
•Oregon Exempt Well Regulations
•Overview of regulations across the country
•Overview of litigation across the country
•Conclusions
www.watersystemscouncil.org
Exempt Wells Generally
•The Prior Appropriation Doctrine (used in the West) states that the
“first in time is first in right.” Therefore, water rights are
administered under a hierarchal system based on the date of priority
of the water right.
•Senior users have rights that are superior to junior users, and
seniors may take their water first, even forcing junior users to cease
withdrawals in times of water shortage.
•Exempt well regulations generally confer on exempt groundwater
uses a legal status which may be administered within the Prior
Appropriation system because it grants exempt uses a legal status
that is equal to permitted uses.
www.watersystemscouncil.org
Exempt Wells Generally
•“Exempt wells” are water uses that are exempt from one or more
permit or other requirements in seventeen western states
•Utah is the only state not to have a category of exempt wells
•Much controversy
www.watersystemscouncil.org
Oregon Exempt Well Regulations
Exempt Uses in Oregon:
•Stockwatering purposes;
•Watering any lawn or noncommercial garden not exceeding onehalf acre in area;
•Watering the lawns, grounds and fields not exceeding 10 acres in
area of schools located within a critical ground water area
established pursuant to ORS 537.730 to 537.740;
•Single or group domestic purposes in an amount not exceeding
15,000 gallons a day;
•Down-hole heat exchange purposes; or,
•Any single industrial or commercial purpose in an amount not
exceeding 5,000 gallons a day;
www.watersystemscouncil.org
Oregon Exempt Well Regulations
In addition, land application is exempt, so long as the ground water:
•Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water
right issued for industrial purposes or a water right authorizing
use of water for confined animal feeding purposes;
•Is reused for irrigation purposes and the period of irrigation is a
period during which the reused water has never been discharged
to the waters of the state; and
•Is applied pursuant to a permit issued by the Department of
Environmental Quality or the State Department of Agriculture
under either ORS 468B.050 to construct and operate a disposal
system or ORS 468B.215 to operate a confined animal feeding
operation.
www.watersystemscouncil.org
Oregon Exempt Well Regulations
•Exempt from permitting, but other requirements apply
•The Department may require any groundwater user, either
permitted or exempt, to submit information about the well use. ORS
§ 537.545(3)
•Exempt appropriators who drill wells must submit tax lot maps
indicating the location of the wells to the Department. They must
also register the exempt uses with the Department within thirty days
of completion of well construction, along with a $300 recording fee.
ORS §§ 537.545(5)-(7).
www.watersystemscouncil.org
Oregon Exempt Well RegulationsStacking Exemptions
•Exemptions can be “stacked”
•The same well can be used for multiple exempt uses, so long as
they are different types
•Limitations
- Can’t stack industrial and commercial exemptions to use more
than 5,000 gallons per day (OAR 690-340-0010(1)(d))
-Can’t stack exemptions to allow watering more than ½ acre of
lawn from a single well
www.watersystemscouncil.org
Regulation- types
•Construction requirements within exemption- Idaho and Texas
(Oregon includes construction requirements in general water well
regulations)
•Kansas, Nevada, North Dakota, Oregon, and Wyoming- certain
information must be submitted
www.watersystemscouncil.org
Regulation Generally
•17 states: 13 prior appropriation states plus 4 others with
permitting regimes- 1 of these, Utah, provides no exemptions
•Should be called “exempt uses”, but “exempt” uses really not
“exempt”
•Varying degrees of regulation
www.watersystemscouncil.org
Regulation- Classification
•Alaska and Montana- based on yield only (Alaska gives discount
on annual fees to domestic fees)
•Seven states (Idaho, Kansas, Nebraska, New Mexico, North
Dakota, Oklahoma and Texas) generally base exemption on use
•Seven states (Arizona, Colorado, Nevada, Oregon, South Dakota,
Washington and Wyoming) classify based on a combination of use
and yield or quantity limitations
www.watersystemscouncil.org
RegulationScope of Exemption
•Nebraska- registration only; Washington- permit only; Alaska- fees
only
•South Dakota- complete exemption?
•Idaho, South Dakota and Wyoming- domestic uses are superior
(other states, like Colorado, also give preference to domestic uses
during droughts)
www.watersystemscouncil.org
Regulation- Types
•Geographic restrictions (e.g., fully or over-appropriated basins):
Arizona, Colorado, Montana, Oregon, Nebraska, Nevada, Texas and
Washington
•The Oregon Water Resources Commission may designate Critical
Groundwater Areas when groundwater levels or quality decline.
ORS § 537.730(1)- allows regulation of all wells in the basin,
including exempt domestic wells, including an order to discontinue
use of wells under certain circumstances, and prohibition of the
drilling of new wells within the area. ORS § 537.775.
•Quantity limitations: Alaska, Arizona, Nevada, New Mexico,
Oregon, South Dakota and Texas
www.watersystemscouncil.org
Regulation- Types
•Limited irrigation within domestic: Arizona, Colorado, Idaho, New
Mexico, North Dakota, Oregon, Washington and Wyoming
•Lower court reversed
•Mandatory hook-up to public water in certain circumstancesArizona, Nevada and New Mexico
www.watersystemscouncil.org
Bounds case (New Mexico) on appeal
•Trial court found in favor of Bounds, ruling that exempt well
statute violates due process
•Court of Appeals reverses: Exempt well provisions constitutional
•Some Court of Appeals language raises questions- for example,
“prior appropriation is a broad principle”
•Supreme Court of New Mexico has accepted appeal, briefs being
filed
www.watersystemscouncil.org
Bounds case ramifications
•Other states looking at Bounds with great interest
•Not binding, but may be persuasive
•Bounds has abandoned due process and takings claims: only claims
left relate to prior appropriation doctrine
www.watersystemscouncil.org
Montana- Administrative Action/Litigation
•On December 1, 2009, senior water rights holders filed a petition
before the Montana Department of Natural Resources and
Conservation (“DNRC”) asking the department to declare the
definition of “combined appropriation” invalid and asking the
department to initiate rulemaking to amend the definition of
“combined appropriation”
•On August 17, 2010, DNRC issued a declaratory ruling in response
to the petition, finding that the regulation “is consistent and not in
conflict with applicable law”. However, the ruling also stated that
“increasing demands on water resources in Montana warrant repeal”
of the rule and stated an intent to initiate rulemaking within eight
months of the ruling.
www.watersystemscouncil.org
Montana- Administrative Action/Litigation
Cont’d
•DNR is evaluating a rule that would allow an exempt well to serve
to up twelve residential lots with a maximum appropriation of 35
gallons per minute and not to exceed ten acre-feet per year.
•Administrative hearing has been appealed to court
•On October 5, 2010, notice of public meeting seeking commentsfirst meeting November 1, 2010
•Presumably more hearings throughout state
www.watersystemscouncil.org
Montana- Administrative Action/Litigation
Cont’d
•DNR settled appeal of administrative hearing by agreeing to pass a
new rule
•Apparently, the state legislature is not happy- agency has agreed to
freeze action for a time to allow legislature to act
•Will the state legislature act?
www.watersystemscouncil.org
Washington State Litigation- Part 1
•Litigation pending on whether “stock watering” is limited to 5,000
gallons per day
•Environmental group lost in the lower court
•Has been appealed to Washington Supreme Court
www.watersystemscouncil.org
Washington State Litigation- Part 2
•On October 19, 2010, the Washington Supreme Court heard
arguments in Kittitas County, et al. v. Eastern Washington Growth
Management Hearings Board (Case No. 84187-0)
•Case focuses on Kittitas County’s compliance with Washington
State’s Growth Management statute, the underlying issue focuses on
exempt wells.
• One justice: Patterns of smaller lots in the rural area result in
uncoordinated use of ground water (individual wells) and greater
likelihood of groundwater contamination (individual septic
systems). (page 60)
www.watersystemscouncil.org
Washington State Moratorium
•Series of moratoria from September 10, 2007 until December 21,
2010
•The Department of Ecology adopted a rule for managing ground
water resources in upper Kittitas County on December 22, 2010; the
rule became effective January 22, 2011
•Chapter 173-539A WAC withdraws from appropriation all
groundwater in Upper Kittitas County with the exception of uses for
structures for which a building permit have been granted and vested
prior to July 16, 2009 and uses which are determined to be water
budget neutral
www.watersystemscouncil.org
Washington State Moratorium
•Water budget neutral projects- identifying water rights that can be
placed into the trust water right program to offset their consumptive
use of groundwater
•Expedites the processing of pilot water banking transactions
•Requests a determination of water budget neutrality
Technical Assistance and Enforcement
•Clarifies what withdrawals are new uses subject to the emergency
rule
•Metering and reporting requirements
www.watersystemscouncil.org
Washington State- Even more
•Department of Ecology seeking legislative authority to limit
exempt wells to less than 5,000 gallons/day
•Water marketing/mitigation proposals
www.watersystemscouncil.org
Overriding issues
•Lack of data
•Lack of information
•Combining with other issues such as growth
www.watersystemscouncil.org
Exempt Well Benefits
•Only source of water in some areas
•Cone of depression, including salt intrusion
•Public water infrastructure- $$$$$$$$$$
•Security issues
•Water as a human right?
Possible Future Approaches
•Education
•Well testing recommendations- annually
•Get more data
•Construction standards
•Better tracking
•Water banks
•Education
www.watersystemscouncil.org
Conclusions
•Lots of action in the courts, the agencies and the legislatures with
respect to exempt wells
•Lots of unanswered questions
•Expect more action in all arenas
www.watersystemscouncil.org