So ... the Department of Ecology thinks our small ag producers are using water "illegally"?

Over the past several weeks, we've learned a great deal about the Department of Ecology's instream flow rule-making process. Up to this point, aside from the information used for the questions asked in public meetings, we've been pretty much content to leave most of that information in collections that help us understand what is taking place in terms of the development of the rule.

This past Friday, October 21, an article appeared in the Capital Press, a weekly newspaper that is highly respected in the western states as a source of good information for the agriculture community. The article discussed the Department of Ecology's "discovery" that some of our local small agricltural producers may be using water "illegally".

Because we have highly reliable information that runs completely counter to the assertions apparently given to the reporter by officials from the Department of Ecology, and because the information they provided is likely causing anxiety for members of our community, we feel that it's time to bring our information to the forefront. It's in the form of a published opinion of the Appeals Court of the State of Washington, Division II, from January 2003. The docket number is 27804-9-II, and the case name is Kim v. Pollution Control Hearing Board, et AL. You may request a copy of your own from the Clerk of the Court by telephoning your request to their office at 253-593-2970.

The opinion was not appealed by either the PCHB or the Department of Ecology. In the absence of an appeal, the finding became settled law, which carries the same force as if the Supreme Court of the State of Washington had been the court in which the case was heard.

In a nutshell, the opinion finds that agriculture is an industry, and that it qualifies for the industrial exemption portion of RCW 90.44.050, the law that governs exempt well use. That means that you are allowed to engage in commercial agriculture with an exempt well, that you are allowed to use up to 5,000 gallons of water from that well every day, and that you are not bound by the one-half acre that you are allowed to water for a noncommercial garden.

The court rejected the Department of Ecology's and the PCHB's view that an administrative agency can alter the plain meaning of a statute to meet changing societal conditions. The power to do that is reserved for the state legislature only, and the opinion provided plain-language instruction to the Department of Ecology and the PCHB on this point.

From what the article contains, it appears that at least some officials at the Department of Ecology are under the impression that Kim v. PCHB doesn't apply to them. From a simple reading of the court's opinion, we think it's pretty safe to conclude that those officials are pretty far off base.

As you read on through this rather long posting, you'll find the text and references of the published opinion in Kim v. PCHB. Although you may prefer to read the article first, it's much more effective to read the opinion first to give yourself the full context of the comments of the Department of Ecology's officials.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

No. 27804-9-II

JOO IL and KEUM JA KIM, Appellants,

v.

POLLUTION CONTROL HEARING BOARD, ET AL, Respondents.

Published Opinion

MORGAN, J. - Joo Il Kim and Keum Ja Kim appeal a ruling that they must have a permit to use well water for their commercial nursery. Based on RCW 90.44.050, we reverse.

Since 1990, the Kims have owned real property on N.W. Central Valley Road in Poulsbo. The property is the site of their home and their business, a commercial nursery called Central Valley Greenhouse. The nursery's components are a greenhouse, a display area of less than a half acre, and parking spaces for eight cars.

The property is served by a well that was drilled in about 1965. The Kims take groundwater from the well for both their residence and the nursery. They use between 100 and 300 gallons per day "to directly water (via hand watering and watering wand) the plants that they raise and offer for sale to the general public." {1} They do not have a permit to take water from the well.

On August 28, 1998, the Department of Ecology (DOE) ordered the Kims to stop using well water for their commercial nursery unless they applied for and obtained a permit. DOE did not order them to stop using well water for their residence.

The Kims appealed DOE's order to the Pollution Control Hearings Board (PCHB). The PCHB affirmed, reasoning in part that it should interpret RCW 90.44.050 not in light of the intent of the 1945 legislature, but rather in light of "our current scientific understanding of ground and surface water continuity, the federal mandates to protect endangered salmon, and the increasing demand for water to serve our growing population and economy." {2}

The Kims appealed from the PCHB to the superior court, but that court also affirmed. The Kims then appealed to this court, which reviews the decision of the PCHB. {3}

RCW 90.44.050 is the governing statute. It was enacted in 1945. At all times since then, it has provided essentially as follows:

After June 6, 1945, no withdrawal of public ground waters of the state shall be begun, nor shall any well or other works for such withdrawal be constructed, unless an application to appropriate such waters has been made to the department and a permit has been granted by it as herein provided: EXCEPT, HOWEVER, That any withdrawal of public ground waters for stock- watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or for an industrial purpose in an amount not exceeding five thousand gallons a day . . . is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions of this chapter: PROVIDED, HOWEVER, That the department from time to time may require the person or agency making any such small withdrawal to furnish information as to the means for and the quantity of that withdrawal: . . . {4}

The overall scheme of this statute is to require a permit except for certain "small withdrawals." The 1945 legislature defined a "small withdrawal" as (1) any amount of water for livestock; (2) any amount of water for a lawn or for a noncommercial garden of a half acre or less; (3) not more than five thousand gallons per day for domestic use; and (4) not more than five thousand gallons per day "for an industrial purpose."

The parties agree that the first three types of withdrawal do not apply to the Kims' use of well water for their commercial nursery. Accordingly, the question for us is whether, when the Kims take well water for their commercial nursery, they are taking such water "for an industrial purpose." In 1995, DOE's Shorelines and Water Resources Program commented on this "industrial" type of withdrawal in a document that it addressed "to all interested parties." It stated in part:

Following is an outline of Ecology's current understanding regarding the ground water exemption specified in Chapter 90.44 RCW. . . . This letter is provided to help reduce confusion and contribute to a common understanding of when and where the ground water exemption does apply.

. . . {T}he entire issue of the ground water exemption is very controversial and is likely to be the subject of legislative action this upcoming session. A strong possibility exists that one or more portions of the current statute will be changed. . . .

Under Washington's ground water code, small users of ground water have historically been exempted from the water right permitting process. . . . This exemption . . . is specified in RCW 90.44.050. . . .

. . . .

The following is Ecology's interpretation of the various portions of the exemption language.

A. ". . . any withdrawal of public ground waters for stock-watering purposes . . ." This provision applies to water farm animals (cows, horses, etc.) drink in the course of grazing or otherwise being raised under natural conditions. Commercial animal-rearing operations such as feedlots and kennels are considered industrial uses of water. . . .

. . . .

D. " . . . for an industrial purpose in an amount not exceeding five thousand gallons a day . . ." Ecology interprets "industrial" in the broadest possible sense, to include "commercial" and any other general industry. Under this interpretation, a commercial dairy using less than 5,000 gpd would be exempt.

. . . .

Ecology will revise this letter in accordance with any changes made by the legislature. If you have any additional questions, please contact Ecology's . . . regional office. . . .{5}

Since 1995, the legislature has not amended RCW 90.44.050, despite a number of proposals that it do so. {6} Ecology, however, has altered its reading of RCW 90.44.050. It now asserts (1) that "the word `industry' excludes agriculture"; {7} (2) that "to interpret the `industrial purpose' exemption to apply to irrigation would render meaningless the exemption for noncommercial gardens less than one half acre in size"; {8} and (3) that to define "industrial purposes to include horticulture or agriculture would increase the types of uses to which the exemption applies, thus undermining the general rule that withdrawals must be permitted." {9}

We reject DOE's first assertion. At least 24 Washington statutes, {10} six Washington regulations, {11} and ten Washington cases {12} refer to the "agricultural industry." At least 300 cases from other jurisdictions do likewise. {13} Webster's dictionary exemplifies the word "industry" by referring to "the poultry industry." {14} Given the words that the 1945 legislature chose to use, there is no logical reason to allow a business in the construction industry, aluminum industry, or automobile industry to take 5,000 gallons per day without a permit, while denying the same right to a commercial nursery in the horticulture industry. We hold that the words "for industrial purposes" must be applied according to their plain terms, and that their plain terms include the Kims' commercial nursery.

We reject DOE's second assertion. The "industrial purposes" provision exempts commercial nurseries but not noncommercial gardens. The noncommercial garden provision exempts noncommercial gardens. Each provision has its purpose, and neither provision is superfluous -- even if the "industrial purposes" exemption is construed to include commercial nurseries.

We reject DOE's third assertion. To recognize that the "industrial purposes" exemption includes all industries is not to allow water to be used more now than before; it is simply to recognize and apply the law that has existed since 1945.

We do not overlook, but we do reject, the PCHB's apparent view that an administrative agency can alter the plain meaning of a statute to meet changing societal conditions. When a statute is rendered obsolete by changing conditions, the remedy is for the legislature to amend it; neither an administrative agency nor the courts may read it in a way that the enacting legislature never intended. Assuming without holding that RCW 90.44.050 is obsolete, it must be amended by the current legislature, not by PCHB or DOE. Accordingly, we conclude that the Kims' commercial nursery fell within RCW 90.44.050's "industrial purposes" exemption; that the Kims could lawfully take 100-300 gallons per day without a permit; and that the PCHB erred by ruling to the contrary.

Reversed.

Morgan, J.

We concur:
Houghton, J.
Quinn-Brintnall, A.C.J.

1 Clerk's Papers (CP) at 73.

2 CP at 67.

3 Bowers v. Pollution Control Hearings Bd., 103 Wn. App. 587, 596, 13 P.3d 1076 (2000), review denied, 144 Wn.2d 1005 (2001) (citing City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998)); Kaiser Aluminum & Chem. Corp. v. Pollution Control Hearings Bd., 33 Wn. App. 352, 354, 654 P.2d 723 (1982).

4 Laws of 1945, ch. 263, sec. 5; Laws of 1947, ch. 122, sec. 1; Laws of 1987, ch. 109, sec. 108.

5 CP at 38-40.

6 See, e.g., Wash. S.B. 5494 (1995); Wash. S.B. 5593 (1995); Wash. H.B. 1685 (1995); Wash. S.B. 5827 (1995); Wash. H.B. 1772 (1995); Wash. S.S.B. 5517 (1995); Wash. S.S.B. 6698 (1996); Wash. S.B. 5275 (1997); Wash. H.B. 2396 (1998); Wash. H.B. 3106 (1998); Wash. H.B. 1314 (1999); Wash. S.B. 5289 (1999). None of these bills passed.

7 Br. of Resp't at 9.

8 Br. of Resp't at 10.

9 Br. of Resp't at 10.

10 See, e.g., RCW 15.04.402; RCW 15.08.025; RCW 15.24.900; RCW 15.62.010; RCW 15.65.028; RCW 15.65.033; RCW 15.66.015; RCW 15.66.017; RCW 15.85.010; RCW 15.92.090; RCW 17.24.171; RCW 22.09.405; RCW 28A.300.090; RCW 28B.30.543; RCW 36.70A.020; RCW 36.70A.060; RCW 36.70A.177; RCW 43.23.035; RCW 43.23.042; RCW 43.23.275; RCW 43.23.280; RCW 50.62.010; RCW 50.62.030; RCW 79A.30.050.

11 See, e.g., WAC 16-470-800; WAC 16-482-001; WAC 16-524-002; WAC 16-470- 800; WAC 16-482-001; WAC 16-524-002; WAC 16-752-300; WAC 16-752-700.

12 King County v. Central Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 14 P.3d 133 (2000); City of Redmond v. Central Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38; Double D Hop Ranch v. Sanchez, 133 Wn.2d 793, 947 P.2d 727 (1997), 952 P.2d 590 (1998); City of Ferndale v. Friberg, 107 Wn.2d 602, 732 P.2d 143 (1987); Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 510 P.2d 221 (1973); Chas. Uhden, Inc. v. Greenough, 181 Wash. 412, 43 P.2d 983 (1935); Griffiths v. Robinson, 181 Wash. 438, 43 P.2d 977 (1935); State v. Clark, 43 Wash. 664, 86 P. 1067 (1906); Stewart v. Washington State Boundary Review Bd., 100 Wn. App 165, 996 P.2d 1087 (2000); Cox v. Lewiston Grain Growers, Inc., 86 Wn. App. 357, 936 P.2d 1191, review denied, 133 Wn.2d 1020 (1997).

13 These cases are too numerous to list but are available through computerized research.

14 Webster's Third New International Dictionary 1155-56 (1969).

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Now let's get into the article that appeared in the October 21, 2005 issue of the Capital Press, written by Cookson Beecher. While you're reading the article, keep the Kim case in mind, remembering that the decision was published in January 2003. If the Department of Ecology was chastised by the Washington Court of Appeals just a little more than two years ago, how can they think that local citizens wouldn't learn about that and apply that knowledge to what is happening now?

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Small-scale farmers face unexpected hurdle – water

Instream-flow rules could unravel fabric of local agriculture

By COOKSON BEECHER
Washington State Staff Writer

The renaissance in agriculture fostered by small farms that supply fresh, locally grown food to local communities has run into an unexpected roadblock in Washington state — one that will probably take a legislative fix to overcome.

The issue comes down to what Department of Ecology officials describe as the “illegal” use of groundwater and surface water by some small-scale farmers.

In the case of water from exempt wells — those that don’t need to be permitted as long as they’re not drawing more than 5,000 gallons per day — some farmers are using water from these wells to water crops and livestock.

Department officials say that’s against state statute — no matter how small the plot they’re watering may be or how little water they’re using.

Wendy Balender, the department’s coordinator for instream flow rules, said that although there’s an exemption in the case of exempt wells that allows for the irrigation of lawns as well as gardens up to one-half acre in size, no such exemption exists for commercial agriculture, no matter its size.

“If it’s for commercial agriculture, there’s no exemption,” she said, adding that because this is state law, it would take the legislature to change it.

This dilemma surfaced during public meetings about the department’s proposed instream flow rule for the Quilcene watershed on the Olympic Peninsula. But department officials readily concede that this issue is not unique to the Quilcene.

“We’re taking a significant pause in rulemaking on this,” said Balender, adding that this issue extends beyond the Quilcene.

“We’re changing our game plan. We want to reach out to stakeholders. We’re not interested in shutting down farmers.”

Nevertheless, she said that if people are diverting surface water or groundwater for agricultural enterprises, they need to have a water right.

“Farmers need to become informed about the water they’re using,” she said.

She also said that in the majority of the Quilcene watershed, there’s not enough water to issue new water rights.

Phil Wiatrak, Ecology Department’s watershed lead for the Quilcene and other watersheds in the state, said that when this issue was brought up during public meetings, it caught department officials by surprise.

“We hadn’t been aware of it,” he said.

Many small farmers were equally surprised, most of them never dreaming that they were using water illegally to water their crops or livestock.

A key component of the proposed rule in the Quilcene watershed is the setting of minimum stream flows for rivers and streams in the watershed, including Chimacum, Salmon, Snow, Tarboo and Thorndyke creeks, as well as the Big Quilcene and Little Quilcene rivers.

Those instream flows are directed at protecting salmon. And while department officials declined to give advice about whether small-scale farmers using water without official water rights should buy their seeds for next year’s crops, they also said that the department is “quite a ways out” on coming to a decision.

Jefferson County Commissioner David Sullivan, who has been following this issue closely, said when it comes to small-scale farmers’ use of limited amounts of water, it comes down to a matter of scale. He hopes that the Ecology Department can come up with a solution that protects small-scale farmers and also salmon.

He pointed out that this issue has surfaced during previous legislative sessions but that in the chaos of law making, it gets overridden by more pressing issues.

He believes that a solution to this dilemma is essential because small-scale farmers play an important social and economic role by helping keep land in open space and supplying people with good local food.

“I support them in this,” he said. “They’re an asset. They add to the rural character and the rural economy.”

Sullivan is proud of successes made by the local watershed planning group in reaching consensus on 43 recommendations, pointing out that the group includes government officials from a wide range of agencies, scientists, local citizens, and the Jamestown S’Klallam tribe.

“I’d hate to see the plan undone with conflict at the end over instream flows,” he said. “We really need to build on our successes instead of veering toward a heavy handed regulatory approach.”

Katherine Baril, director of Washington State University Jefferson County Extension, said that the growth of small farms that supply local communities with food is happening statewide and nationwide.

“It’s a renaissance in agriculture,” she said. “It’s good economics for the community, good for the environment, and good for food security.”

The challenge, she said, is to create a system that keeps enough water in the streams for salmon, lets people grow local food, and involves enough trust that people are willing to sit around the table to solve problems.

Cookson Beecher is based in Sedro-Wooley, Wash. Her e-mail address is cbeecher@capitalpress.com

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Well ... what do you think? Is the Department of Ecology dealing with Jefferson County's residents in a credible manner, or does this make you feel as if there's something just a wee bit wrong with this process. For instance, why are they coming to Jefferson County claiming that the people who grow a bit more food than they need, so that they can take it to the Farmers' Market, are using water "illegally"?

As if that's not enough, just how is it that the Department of Ecology feels that it's OK to ignore the plain language of a court finding that doesn't go their way?

Please feel free to share this with your neighbors, both those who live here, and those who live far away. There are 62 WRIAs in Washington. Let's make an effort to be sure that people living in each and every WRIA learn as much as possible about what's happening here. What's happening here today is going to be happening to them tomorrow ... unless we can make things change.