Posted: Thursday, June 23, 2011 10:00 AM
Steve Brown/Capital Press
Mary Sue Wilson, senior assistant attorney general, delivers oral arguments before the Washington State Supreme Court. At rear are Justices Mary E. Fairhurst and Tom Chambers.
Environmentalists, farmers want permit for full amount of groundwater
By STEVE BROWN
OLYMPIA -- The Washington State Supreme Court will rule in the coming months on whether the state's livestock operations can withdraw unlimited amounts of groundwater.
"The fate of the industry rests on this case," Jack Field, executive vice president of the Washington Cattlemen's Association, said.
The issue revolves around the new 30,000-head Easterday feedlot in Eastern Washington. The court heard oral arguments in the case June 16.
A lawsuit was filed in 2009 by several Franklin County dryland farmers and two environmental groups -- the Center for Environmental Law and Policy and the Sierra Club -- that want to stop the feedlot from going forward without first obtaining a groundwater permit for the full amount of drinking water the cows will need.
The defendants -- Easterday Ranches, Washington state and the Ecology Department -- say the necessary water rights and permits are in place.
Attorney General Rob McKenna issued an opinion in 2005 that Ecology cannot reduce exempt withdrawals of groundwater below those specified under the law.
Under current law, all groundwater withdrawals require an application and permit from Ecology. Exemptions from this permit requirement include any withdrawals of public groundwater for stock watering purposes.
In 2010, a Superior Court judge dismissed the challenge of McKenna's opinion, saying the statute exempting livestock watering from a permit requirement was "clear and unambiguous."
Janette Brimmer of Earthjustice, counsel for the plaintiff, Five Corners Family Farmers, told the Supreme Court that the 1945 legislation allowing the exemption intended that water withdrawals be limited.
The Easterday operation would withdraw up to 600,000 gallons a day, the equivalent of a 2,300-unit residential subdivision, this in one of the driest areas of the state, she argued.
A plain-language analysis of the legislation in context with the groundwater code is that 5,000 gallons a day was the intent for both residential and industrial purposes, Brimmer said.
Mary Sue Wilson, senior assistant attorney general, told the justices, "The Legislature knew what it was doing" in establishing the exemptions.
She said technical experts have studied the groundwater around the Easterday operation and "expected the likely impairment to be zero." She said only a few wells are in the area, and they are 800 feet deep.
Easterday's well is 1,600 feet deep and fully cased.
Jeffrey Slothower, an attorney representing six livestock and dairy associations, said the Superior Court's ruling is consistent with surface and groundwater regulations.
Application of water to a beneficial purpose creates a water right, according to state law, he said. "Allow Mr. Easterday the same opportunity as all stockmen that came before him."
When Brimmer restated her position that the plaintiffs' problem is with unlimited quantity of exemption, Justice James Johnson asked if anyone's water has been impaired by the withdrawal for stock watering.
Her reply: "No. ... Our interpretation is that a water right is required for anyone using more than 5,000 gallons a day."
After the court adjourned, rancher Cody Easterday said, "My well goes deeper and taps entirely different water."