Kittitas County is working on a proposal that would call on the Eastern Washington Growth Management Hearings Board to approve a six-month continuance on Kittitas County government’s groundwater well issues.
The time would allow the major Yakima River Basin water interests, including Kittitas County, to develop a solution to the concerns related to the use of groundwater wells in the basin that includes Yakima and Benton counties.
Kittitas County government is facing a Dec. 21 deadline to show the state growth board what it has done to bring its rural land-use rules and its policies on groundwater wells in line with the state Growth Management Act.
The growth law calls for cities and counties to protect the quality and quantity of ground and surface water resources by how they manage rural development.
The request for additional time would relate only to groundwater issues, not rural land-use concerns that also are before the growth board.
Kittitas County Chief Civil Deputy Prosecutor Neil Caulkins on Tuesday told county Planning Commission members during a hearing that the proposal is being developed in cooperation with the state Department of Ecology and will be unveiled in a few days.
Caulkins said once the request for more time is formally made, it’s likely the state growth board would decide in November if it will allow the extension.
“It would give six months for the tri-county effort to come to some fruition and develop a reasonable resolution,” Caulkins said.
The state growth board ruled that Kittitas County’s rural land-use rules and policies for approving rural housing developments did not adequately protect the quality and quantity of groundwater resources by growth law standards.
A July 2011 majority decision by the state Supreme Court upheld the state board’s ruling against the county, ordering the county to comply with the state board’s concerns with groundwater management.
County commissioners of the three counties began formal talks last year on finding a groundwater solution.
In mid-September the commissioners met for the first time together with state Department of Ecology Director Ted Sturdevant, the Yakama Nation and the U.S. Bureau of Reclamation in Yakima to kick off planning work that would allow new groundwater wells in rural areas of their counties without harming existing water rights or surface water needed for habitat.
At that time the commissioners and DOE officials indicated they would look at groundwater management plans done in other areas around the state to possibly form a plan for the Yakima River Basin.
The plan for the three-county basin, officials said, would likely include a means to allow rural property owners, or a wider community entity, to obtain a share of a surface, senior water right to offset water from new groundwater wells for rural housing.
Officials have been saying a management plan for the three counties’ groundwater use likely would include proposed legislation to come before the state Legislature in early 2013.
Affecting surface rights
Caulkins said state court rulings have affirmed that local governments, in their review of building permits and housing project requests in rural areas, must determine not only if adequate supplies of safe groundwater exists for new wells but also that the entity seeking the permit has a legal right to use the groundwater.
Ongoing water right litigation in the Yakima basin has affirmed that the Yakima basin is over-appropriated, meaning there are people holding more water rights than there is water to supply those rights, Caulkins said.
Also, a U.S. Geological Survey study, Caulkins said, confirmed the link between surface water and groundwater in the basin, and that the amount of water pumped from the aquifer throughout the basin is slightly diminishing the surface water supplies and related water rights.
The USGS study affirmed that a permit-exempt groundwater well request could meet all legal requirements related to the 1945 permit-exempt well law and court-case restrictions, but still adversely affecting existing surface water rights, Caulkins said.
“The (state) supreme court made it clear that condoning new (groundwater well) withdrawals without any changes would be infringing on existing surface water rights,” Caulkins said, and thus going against water laws and the mandates of the Growth Management Act.
The recommendation before the Planning Commission would extend restrictions now in place in Upper Kittitas County on new groundwater wells, operating since July 2009 by DOE order, to the entire county.
The restrictions, in certain areas, require a water right, or a portion of a surface water right, to be obtained before allowing the drilling and use of a new groundwater well. The water right would offset the amount of water not returning to the ground from the use of the new well, thus having a neutral effect on the basin’s total water supply.
Applying the restrictions to the entire county is “a nasty horse pill” for the county to take, Caulkins said, but the consequences are worse if no action is taken.
He said without the changes, the state growth board could decide the county’s rural land-use rules and policies to be legally invalid, thus halting the county’s right to review or approve any building permit or rural subdivision.
“This is why the proposal is the way it is,” Caulkins said.