AG unblocks water spigot for livestock

This article appeared in the December 9, 2005 edition of the Capital Press.

What's really interesting with this, particularly when coupled with the WRIA 17 instream flow issue and the Department of Ecology's recent recognition of the Kim case is that the DOE is accepting both. This raises a couple of interesting questions, especially in light of how some organizations are viewing these developments.

The first question is whether or not the Department of Ecology is hoping for legislative changes to Washington's body of water law to a legislative solution more in keeping with the department's previous stance on issues surrounding RCW 90.44.050, the exempt well provision in state statutes.

With Director Jay Manning's assurances that the deparment will not propose changes in law, that begs the second question. Has an opening been created for nongovernmental organizations to sue the Department of Ecology and the state seeking a court-directed change in policy?

Time will tell, but things keep getting curiouser and curiouser...

You can click here to download a complete PDF copy of the opinion.

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AG unblocks water spigot for livestock

By PEGGY STEWARD
Washington State Staff Writer

It’s what Washington state livestock producers have been saying all along – state law does not limit the amount of groundwater that can be withdrawn daily for livestock use without a permit.

Producers are applauding a formal opinion from the state attorney general that agrees with the longheld livestock industry interpretation of a 1945 state law that covers exempt wells.

“We are ecstatic that the attorney general reads the law the same way we’ve read it for more than 50 years,” said Jay Gordon, executive director of the Washington State Dairy Federation in Elma.

State law requires a water-right permit for surface or groundwater withdrawals, although there are certain exemptions from the permit requirements for groundwater use. Before receiving the Nov. 18 opinion, the state Department of Ecology had interpreted the law as limiting all exempt-well uses, including for livestock, to no more than 5,000 gallons a day.

In the opinion issued Nov. 18, the attorney general said the law exempts withdrawals of groundwater for livestock watering from the permitting requirement and does not set a limit on the quantity of water that can be withdrawn.

The opinion also said the Department of Ecology does not have the authority to impose a categorical limit on the amount of groundwater that can be withdrawn for livestock watering without a permit, although the department’s statutory authority to regulate the use of water could affect those withdrawals in certain cases, for example, when new withdrawals could effect hydraulic continuity.

The opinion also said an agency cannot alter its interpretation of a law in a way that is inconsistent with the law’s language and legislative intent “based on its belief that a different interpretation would better advance sound public policy.”

“The attorney general’s opinion is about the best seven pages you can read,” Jack Field, executive vice president of the Washington Cattlemen’s Association in Ellensburg, said in a telephone interview. “It’s what we’ve been saying all along.”

“It’s paramount that we hang onto that exemption,” said Ted Wishon, a Colville cow-calf producer and vice president of the Cattle Producers of Washington. “It doesn’t take much to break the 5,000-gallon mark. It’s important for grass-roots cattle producers to have the exemption.”

The opinion will have a positive impact for cattle feeders, said Ed Field, executive director of the Washington Cattle Feeders Association in Quincy.

The opinion was sought by Rep. Janea Holmquist, R-Moses Lake, and Sen. Bob Morton, R-Orient. Holmquist said the Department of Ecology’s interpretation limiting stockwater use was causing problems for producers in her district and elsewhere in the state. Lenders are reluctant to provide financing for dairymen or ranchers faced with uncertainties about water supplies, she said.

“When an agency re-interprets the law, we need to push back,” Holmquist said.

Jay Manning, Department of Ecology director, said the state law is ambiguous. But Manning said the Department of Ecology will abide by the new attorney general’s opinion.

“We will not take any action to limit groundwater use under the stockwater exemption to 5,000 gallons per day,” Manning said in a news release. “Our actions will be consistent with the attorney general’s opinion.”

Jack Field said industry organizations are already bracing for attempts to challenge or change the state law.

“The big message to the industry is ‘Don’t sit back,’” Field said. “The hard part will be to defend the law against a potential legislative onslaught.”

Holmquist said she is prepared if there is an attempt to change the law when the Legislature meets in January. She said she met with Manning on Dec. 1 and received assurances that the Department of Ecology would not propose a new law.

“The question of water availability is critical to the livestock industry,” said Holmquist who grew up in a cattle-producing family. “Agriculture, including livestock, is an important part of the state economy. Producers need water to stay in business.”

The formal attorney general’s opinion can be found at:

www.atg.wa.gov/opinions/opinion_index.shtml

It is AGO 2005 No.17.

Peggy Steward is based in Ellensburg, Wash. Her e-mail address is psteward@capitalpress.com.

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