Exempt Wells in the Courts, Agencies and Legislatures

Presented at The Oregon Water Conference, May 24-25, 2011, Corvallis, OR.“Exempt wells” are water wells that are exempt from one or more permit or other requirements in seventeen western states. Important policy considerations underlie the exemption, and only Utah does not exempt any water uses. However, some have expressed concerns about exempt water wells and the impact of the exemptions on water planning and growth management.\ud \ud The proliferation of exempt wells in the West has generated a considerable amount of litigation, as well as administrative actions and legislative activity. This presentation examines and analyzes the most recent litigation and other activity on exempt wells, analyzing the possible impacts in Oregon.\ud Most prominently, in Bounds v. New Mexico, the Court of Appeals of New Mexico, No. 28,860 (October 29, 2010) opinion overruled a lower court decision that was decided in 2008. The lower court ruled that New Mexico’s exempt well statute was unconstitutional on its face. The Court of Appeals decision has been appealed to the New Mexico Supreme Court.\ud In Washington State, litigation has been filed challenging the Washington Attorney General’s opinion that the exempt well provision in that state provides an unlimited exemption for “stock watering”. The exemption is being used by large concentrated animal facilities to allegedly pump over a million gallons of water a day. In addition, litigation involving Washington State’s growth management statute, but focused on exempt wells, has been argued before the Washington Supreme Court in Kittitas County, et al. v. Eastern Washington Growth Management Hearings Board (Case No. 84187-0). Finally, A moratorium on exempt wells in Upper Kittitas County has generated significant controversy.\ud In Montana, the Department of Natural Resources rejected an administrative challenge to the exempt well rules, but in a settlement of court action challenging that action agreed to institute rulemaking to change the regulation. Legislative activity is expected this coming session.\ud \ud This presentation synthesizes the present activity. The author attempts to provide a forecast of the outcomes of this activity