The Washington State Supreme Court just accepted review of Five Corners Family Farm et al. v. Department of Ecology (Easterday Ranches), which will determine the quantity of permit-exempt groundwater rights for stockwatering under the state Groundwater Code.  The legal dispute in Easterday concerns a narrow question of statutory interpretation - whether reference to a 5,000 gallons per day permit-exempt limit found in RCW 90.44.050 is applicable to stockwatering.  More importantly, the case invokes legislative policy decisions with significant implications for Washington’s livestock industry  and how the Department of Ecology manages water resources.  A ruling by the Court that the statute does not limit the quantity of withdrawals for stockwatering would likely confirm existing permit-exempt stockwatering rights.  If the Court disagrees and overrules the Superior Court, newly recognized limitations on permit-exempt stockwatering could put many of the State’s dairy farms and feedlots out of business.  Under either result, the fight could turn back to the Legislature to determine the future of permit-exempt withdrawals for stockwatering.

The central question in Easterday Ranches is whether RCW 90.44.050 exempts groundwater withdrawals for stockwatering in any quantity (limited by the beneficial use of a farm or dairy), or whether the statute limits permit-exempt withdrawals for stockwatering to 5,000 gallons per day.  Since its enactment in 1945, the Groundwater Code has exempted four types of uses from groundwater permitting: stockwatering purposes, watering of a lawn or noncommercial garden, domestic uses, and industrial purposes. 

In 2005, the Attorney General opined that the plain language of RCW 90.44.050 does not limit the quantity of withdrawals for stockwatering.  Since then, the Legislature has considered competing bills that would clarify the statute and convened a Stockwater Working Group to review the issues surrounding permit-exempt stockwatering.  In 2009, the Working Group opted not to propose legislation in anticipation of Easterday Ranches and the Municipal Water Law case   

The legal issues have now come to a head in the Easterday Ranches case, which involves a proposed 30,000 head feedlot in Franklin County.  In 2009, nearby wheat farmers and environmental groups responded to the proposal with legal action, asking for a declaration that the stockwatering exemption in RCW 90.44.050 be limited to 5,000 gallons per day as part of a bundle of exempt domestic uses (or in the alternative, that the Legislature did not intend the statutory exemption to apply to industrial cattle operations).  Defendants also include the Department of Ecology and eight intervening agricultural and livestock associations.  In 2010, Superior Court Judge Runge agreed with the Attorney General Opinion that the statutory exemption does not limit withdrawals for stockwatering.  Interestingly, the livestock industry groups participating in the case introduced evidence that overall water use for livestock in the State has declined since the statute was enacted in 1945.  The Supreme Court agreed to hear a direct appeal, anticipated in 2011, which should bring finality to the scope of existing permit-exempt groundwater rights for stockwater uses.