AG rules agency cannot reduce volume of water drawn from exempt wells
By MATTHEW WEAVER
Washington cattle producers say they are relieved that stock watering options remain the same in the wake of a legal opinion limiting the Department of Ecology's authority over water rights.
State Attorney General Rob McKenna issued an opinion last month that the state Department of Ecology cannot reduce exempt withdrawals of groundwater below those specified under the law.
The opinion also concluded the department can temporarily stop water from further appropriations if enough data are not available to evaluate the impacts on senior water rights.
However, the department does not have the authority to reduce the volume of water withdrawn through exempt wells, McKenna said.
"If you have a home, a half-acre lawn and garden, or you have livestock you're watering, you get one 5,000-gallon-a-day exemption for your home, another for your lawn and garden and a third for stock water," said Dan Partridge, communications manager for the Department of Ecology water resources program. The stock water exemption is unlimited.
Washington Cattlemen's Association Vice President Jack Field said the issue is especially important in northern Kittitas County. Due to concerns about the impact on the aquifer, the department had placed a moratorium on new wells for domestic use, Field said.
County commissioners were concerned about a potential precedent, enabling the department to limit arbitrarily the development or use of wells, Field said.
The cattlemen's association was especially concerned because stock watering was included in the moratorium. A 2005 opinion from the attorney general found the exemption for stock watering is unlimited.
"We don't see a huge number of livestock operations wanting to be sited in the upper county tomorrow," Field said. "If a precedent was set, you had to purchase mitigation water before you could drill a stock water well. We were quite concerned that would set a very bad precedent for the future of the livestock industry in Washington state."
Cattle Producers of Washington President Wade King said the opinion strengthens the cattlemen's position.
"Right now, the law is protecting us," he said. "We're glad to hear Rob McKenna feels the way he does, that the law speaks for itself. It's very plain, and he's comfortable defending it."
While the Ecology Department knows what it "can or can't do" in Kittitas County, Partridge said, department attorneys and the attorney general's office are analyzing the effects on other river basins.
"We're evaluating our options right now on where we go from here," Partridge said. "Technically, we don't have to follow the opinion, but as a practical matter, we probably will in developing our water policy in Kittitas County and elsewhere in the state."
The opinion points out the importance of obtaining water rights and mitigation water for exempt well use, Partridge said. Then the chances of water being cut off during drought or shortages are reduced significantly, he said.
The opinion has "limited the options we can use in regulating exempt wells in river basins," Partridge said. "It looks like our primary option is closing an entire river basin to new groundwater withdrawals if we want to regulate the use of exempt wells in that particular area."
Field was glad to see the stock watering exemption maintained in its entirety.
"When people talk about stock water, they may only be thinking about dairies and feedlots," Field said. "But if they make a change, it's going to trickle down and it will impact your neighbor that's got a handful of cows, potentially."
Access the Sept. 21 opinion at the Washington State Attorney General's Office website at www.atg.wa.gov.
Does opinion affect stock water lawsuit?
A state attorney general's opinion limiting the Department of Ecology's power over water withdrawals will have no effect on a lawsuit against a new feedlot, an assistant attorney general said.
"That issue was not in play in this most recent attorney general's opinion," Assistant Attorney General Alan Reichman said.
Franklin County farmer Scott Collin, Five Corners Family Farmers, the Center for Environmental Law and Policy and the Sierra Club are suing Easterday Ranches, Washington state and the Department of Ecology to require the proposed 30,000-cow feedlot to obtain a groundwater permit for all of its stock water.
The Washington Cattlemen's Association supports the attorney general's opinion and the stock watering exemption and has filed a request to intervene in the Easterday case to explain the importance of the exemption to the industry, Vice President Jack Field said.