Washington Journal of Environmental Law & Policy


Jeremy Lieb


Washington, like most western states, exempts domestic groundwater use from water rights permitting requirements. The cumulative impact of exempt groundwater use threatens senior water rights and protected stream flows in certain arid parts of the state that have seen significant exurban and suburban development. Exempt domestic wells, however, are only exempt from requirements to obtain a permit and are still subject to regulation under the principles of prior appropriation; exempt well users can be forced to curtail their water use in order to satisfy the full extent of a senior water right. In Kittitas County v. Eastern Washington Growth Management Hearings Board, the Washington State Supreme Court held that county comprehensive plans must not allow evasion of water permitting requirements through the use of exempt wells. The Court clearly suggested that counties have an affirmative duty to ensure that applicants seeking permits to build or develop land have a legally adequate supply of water available. Some commentators express concerns regarding whether this is an appropriate role for counties to play in water management. This Comment argues that requiring counties to ensure the legal adequacy of a proposed water source when permitting development may actually provide an effective means to regulate exempt wells where their cumulative impact is significant. Counties are equipped to determine whether a permit applicant has access to a legal water source. The apparent regulatory structure following Kittitas County allows the Washington Department of Ecology to determine whether to close basins off for new withdrawals and for Ecology or some other expert entity to handle the details of administering mitigation banks, while the counties will be responsible for ensuring compliance by adding a small step to an existing permitting process.

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