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These are some frequently asked questions about a tri-party settlement agreement in the United States of America, Spokane Tribe of Indians, v. Barbara J. Anderson, et al. case that addresses the impacts of permit-exempt wells on flows in Chamokane Creek.
To see further details and legal documents for this case, visit our Chamokane Creek page.
For most landowners in the basin, you will not need to do anything different regarding your present use of surface or groundwater. The mitigation program will cover your very small impact to the flow in Chamokane Creek. If your exempt use is exceeding the limits outlined below, you should reduce your use to be within the limits and avoid being in conflict with the regulations.
It is important for all water users in the basin to make sure they are using water most efficiently. Washington state law allows domestic water users to use water for indoor use, a half acre or less of non-commercial lawn and garden, and stockwater. The mitigation program will protect these uses. If individual properties exceed the limits contained in the agreement, that excess use is not protected and could be subject to regulation in court.
The state has agreed to construct a well and pipeline that will move groundwater from an area outside of the basin into the Chamokane drainage area and increase flow in Chamokane Creek during the summer months. The volume of water delivered to the creek will be more than the calculated flow impact that all existing domestic water users and stockwater wells currently have on flow in the creek. As domestic use increases in the basin, the volume of water needed to offset the impacts can be increased by additional pumping of the mitigation well. By offsetting the impacts, the junior water users in the basin will not need to be regulated to protect the senior rights in the creek.
At the time, the court considered small uses “de minimis,” so small as to be insignificant. Through the USGS study, we learned the groundwater is connected to streamflow. The cumulative impact of many small uses is significant in small basins.
Adjudication is a process that legally determines whether a water right is valid, how much water can be used, and its priority during shortages in a defined basin. It prioritizes each individual water right according to Washington water law. Because the Spokane Indian Reservation is located within the Chamokane Basin, the adjudication occurred in federal district court.
The state of Washington follows the doctrine of prior appropriation, which means that the first users have rights senior to those issued later. In 1979, the federal court determined the Spokane Tribe has senior water rights for irrigation and to maintain flows for fish in Chamokane Creek. These water rights have senior priority in the Chamokane Creek Basin.
The agreement outlines a mitigation program that will protect existing and new domestic groundwater uses up to one-acre-foot per year and stock watering from the stream or a stock tank. If individual properties are exceeding these limits or starting new commercial or industrial projects, those uses are not covered by the mitigation program and could be subject to regulation by the federal court.
In 1979, the federal court decided that domestic water and stockwater uses were considered so small that they did not need to be regulated. Over the past 40 years, additional wells for those uses have been added and our understanding of how small uses can impact senior water rights has evolved.
The court ordered a groundwater study to better understand the connection of groundwater in the upper and lower basin and how pumping groundwater affects surface water in the creek. The study, conducted by the United States Geological Survey (USGS), found that all groundwater withdrawals in all parts of the basin influence the available surface water in Chamokane Creek.
Most summers, the Spokane Tribe’s senior water right (confirmed by the court) to keep a minimum flow in the creek to protect fish isn’t met. To protect this right, the state, tribe and federal government developed the mitigation program to offset domestic and stockwater uses. The program is designed to cover the small impact most landowners in the basin will have on the instream flows of Chamokane Creek.
It won’t. The settlement does not affect existing water rights authorizing use of water from springs, and any new use of spring water would need a water right as required by current law.
Yes. The mitigation program is designed to offset permit-exempt domestic uses up to one acre-foot per year and stock-watering throughout the basin.
This settlement agreement does not require permit-exempt water users to use a water meter. If your exempt use is exceeding the limits of existing state law or those outlined in the mitigation program, you should reduce your use to be within those limits and avoid being in conflict with the mitigation program. We cannot predict if future legislative or legal action may require metering.
The mitigation plan was designed to account for seasonal changes in how water is used. For example, more water is used in the summer but the program allows for the higher volumes year round. Additionally, the agreement allows for future domestic and stockwater growth. The watermaster will adjust the flow rate to accommodate for that growth based on a formula contained in the agreement.
No. The use of water from the Spokane River is non-consumptive (does not reduce the total amount of water in the river) and should not affect its health. The mitigation well will pump up to 80 gallons per minute to Chamokane Creek to offset current and future domestic and stock water uses as allowed under current limits. This water will enhance flow in the Chamokane Creek before traveling downstream and returning to the Spokane River at a location immediately upstream from its withdrawal point.
The mitigation project is estimated to cost approximately $3.1 million. We will primarily fund the agreement, with support from the Spokane Tribe and the U.S. Bureau of Indian Affairs.
The Settlement Agreement is referenced in the Show Cause Motion labeled “Case 2:72-cv-03643-SAB ECF No. 913 filed 06/21/19.” The settlement binds the parties and holds each accountable to fulfill the agreement. The Proposed Order for possible entry by the court incorporates major components of the settlement and modifies previous orders entered by the court years ago. The modifications are needed to allow the parties to fully implement the terms of the agreement.
Washington state law allows domestic water users up to 5,000 gallons per day for indoor use and they can water no more than ½ acre of non-commercial lawn and garden.
The mitigation program is designed to offset permit-exempt domestic uses up to one acre-foot per year and stock-watering throughout the basin. One acre-foot of water equals 325,851 gallons, which averages to 893 gallons of water per day over the course of a year.
The agreement doesn’t change water use for what the state allows under the groundwater permit exemption.
For the Chamokane basin, the agreement covers the typical amount of water used over an entire year for the most common permit-exempt well uses.
The state, tribe and federal government agreed to use an estimate that more closely mimics typical use in the area rather than estimate the potential impact at maximum quantities.
The settlement does not change the current process for drilling a new, permit-exempt well. New permit-exempt wells are allowed and the settlement agreement will cover new domestic use and outdoor lawn and garden uses up to one-acre foot per year, and stockwater use.
If the property has a valid water right, this can be used (perhaps requiring a change application) to provide water for the new lots that exceeds the one acre-foot per year limit.
No. The state is covering the cost of the mitigation program that allows the typical domestic and stockwater uses to continue without any fees.
A few water users in the basin are charged a fee by the federal watermaster. Those uses have been adjudicated by the court and are subject to regulation by the watermaster when the Spokane Tribe’s senior water right isn’t being met.
We are responsible for managing the water resources of the state, including issuing the right to use water as well as protecting the instream resources for the benefit of the public. Before Ecology can issue a water right permit, the proposed use must meet a four-part test:
Certain uses of groundwater are exempt from permitting. Those same uses are still subject to water law and the priority system. Permit-exempt water use includes:
The mitigation program under the settlement agreement is designed to offset permit-exempt domestic uses up to one-acre-foot per year (including outdoor lawn and garden use), and permit-exempt use for stock-watering as historically practiced in the basin.