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Washington Supreme Court Soon to Decide Whether Permit-exempt Groundwater Withdrawals for Stockwater are Limited

June 21, 2011

For two years, various agricultural interests and environmental groups have been debating the application of Washington’s groundwater exemption for stockwater use at a feedlot in Franklin County. This is just one of several recent arguments in and out of the courts regarding the appropriate use of state statutes exempting certain uses of groundwater from permitting requirements. Last week, the Washington Supreme Court heard oral argument in Five Corners Family Farmers v. Washington, et al. It may be several months before it issues a decision. Many of Washington’s ranchers and dairy farmers utilize the stockwater exemption. Consequently, the outcome of this decision will be significant.

Easterday Ranches, Inc. intends to use the groundwater exemption to provide stockwater to cattle at a 30,000-head feedlot in the “Five Corners” area near Pasco, Washington. This use would be consistent with a 2005 Washington Attorney General opinion stating that the Department of Ecology, the agency responsible for administering state water rights, does not have the authority to limit the amount of groundwater used for stockwater purposes. Nearby farmers concerned about impacts to their water supply challenged Easterday’s ability to use the exemption without limit. Joined by environmental groups, they have argued that the exemption should be limited to 5,000 gallons per day like the exemption for domestic and industrial uses.

The nearby farmers and environmental groups appealed the Franklin County Superior Court’s May 2010 ruling that the groundwater exemption statute, RCW 90.44.050, “is unambiguous that withdrawals of groundwater for stockwatering purposes “are not limited to any quantity.” In the appeal, the Department of Ecology agreed with the Superior Court’s ruling and suggested that any modifications to the statute limiting use should be decided by the state legislature. 

Also at issue in this case is whether the plaintiffs (the nearby farmers and environmental groups) have standing to sue Easterday.  Easterday filed a motion to dismiss before the Superior Court, arguing that the plaintiffs did not have standing because they had failed to show their wells would be impaired by Easterday’s operation. The Superior Court denied the motion and Easterday appealed. The Supreme Court will also be ruling on this issue.

Indicative of the import of these issues, various parties have intervened or submitted amicus curiae (“friends of the court”) briefs. The Washington Farm Bureau, Washington State Dairy Federation, Northwest Dairy Association, Washington Cattle Feeders Association, Cattle Producers of Washington, and the Washington State Sheep Producers jointly intervened making arguments consistent with Easterday’s position. Several Indian Tribes and Aqua Permanente, a non-profit whose purpose is the protection of senior water rights in Kittitas County, submitted amicus briefs suggesting that the stockwater exemption should be limited. 

The Department of Ecology’s website has an extensive record from the court proceedings and related matters.

If you have any questions, please contact Kate Moore at kmoore@dunncarney.com

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