Washington court sides with cattlemen in groundwater case

Jan 6, 2012

In a 6-3 decision issued didn’t change anything,” she Dec. 22, the Washington says. “It wasn’t necessarily State Supreme Court ruled that state law does not limit the amount of groundwater that may be drawn for livestock watering purposes within state boundaries. The decision upholds previous rulings issued by lower courts, and represents the final word from the state’s judicial system on litigation first filed in 2009, primarily to prevent Easterday Ranches from constructing a 30,000-head-capacity feedlot on its property in eastern Washington’s Franklin County.

At the heart of the dispute was a line in the state water code, written in 1945, exempting wells for stock watering purposes, among other uses, from the permitting process required for crop irrigation wells. Following Easterday’s announcement of intent to build the new feedlot, neighboring farmers filed suit to prevent the facility, citing concern for their household water supplies. Banding together in a group known as the Five Corners Family Farmers, the litigation was soon joined by the Center for Environmental Law and Policy, and the Sierra Club. In their suit, Five Corners argued that the stock water exemption was never meant to address large confined animal facilities such as the one proposed by Easterday Ranches and that, under the law, the exemption was limited to a draw of just 5,000 gallons per day. The courts, however, did not interpret the law in the same way. “We conclude that, under the plain language of the statute, withdrawals of groundwater for stock-watering purposes are not limited to any particular quantity,” wrote Justice Susan Owen, author of the majority opinion.

“It boiled down to grammatical structure,” says Ed Field, executive vice president of the Washington Cattle Feeder’s Association. Although a 5,000-gallon limit is mentioned in the law, he points out, the structure of the sentence containing this limit clearly indicates that it applies only to domestic uses, not stock watering.

“The law set up certain classifications,” he says. “It wasn’t intended to say that all of these uses could not exceed 5,000 gallons. We thought it was pretty clear and, fortunately, the high court agreed.” While the lawsuit and resulting decision focused on Easterday’s proposed feedlot, Field points out that the decision has wider implications across the state. “A lot of dairies and feedlots in Washington depend on that exemption,” he says. “Easterday Ranches did not precipitate this event; this has been coming for 15 years or more. This is obviously a very good ruling for us. It needed to be decided, either in the courts or the legislature.”

According to Kristin Boyles, Seattle-based lawyer for Earth Justice, and legal counsel for the Five Corners group, this most recent defeat is disappointing, but not necessarily surprising. “We were challenging what the state’s interpretation of the law was, so, to a certain extent, losing a step backwards, but it surely wasn’t a step forward

either.” Boyle’s primary concern, she says, is that there won’t be enough water in the arid region to go around. “This is an area of water law in Washington that will remain unregulated, and that’s a problem,” she says. “If this kind of unpermitted water use can suck up the rights of people who have been there four generations, there’s going to be a train wreck. I worry that somebody will have to have their well go dry before people wake up to the problem.”

“When you line them up together, it´s not like the cattle industry is sucking the aquifer dry.”

Field and other proponents of the exemption, however, argue that this will not occur. According to court documents, the Easterday feedlot projects a draw of roughly half a million gallons per day through its well, a number that seems large, but that Field cautions must be taken in context. During the irrigation season, he points out, a single 125-acre circle of potatoes, ubiquitous in the region, may draw as many as 1,000 gallons per minute, or 1.3 million gallons per day. “When you line them up together, it’s not like the cattle industry is sucking the aquifer dry,” he says. “Comparatively, we use a very small amount of water.” The amount, contends Boyles, is less important than the lack of a required permit. “In Franklin County right now, you can’t get a permit,” she points out. “These guys may not be pulling as much as a potato circle, but they are a new draw on the same water, that was able to short-circuit the entire process. I think that this is a big loophole in Washington’s water law that people are going to have to deal with.”

With the intent of the law now clarified by the courts, the only course of action remaining to Five Corners and the other litigants is to attempt to change the law at the legislative level. The effects of such a change, worries Field, would reverberate throughout the state’s livestock industries. “It would be devastating,” he says, pointing to the loss of jobs and livestock operations reliant on the current exemption. “We would hope that anyone in business right now would be grandfathered through, but even so, it would definitely inhibit any future growth or expansion in these industries.”

Despite concerns, changing a state law is a lengthy and complicated process, and neither side expects to see that step taken in the near future. “That’s a battle we’ll probably have to fight eventually,” says Field, “but our legislature has plenty to do right now.” — Jason Campbell, WLJ Correspondent