Center for
Environmental Law & Policy
In 2005, Attorney General Rob McKenna issued an opinion that companies may pump unlimited groundwater for industrial dairies and feedlots. No permit is required.
The Attorney General’s opinion puts senior water right holders, rivers, and aquifers at risk in Washington State.
Photo courtesy of Flickr
One result of the Attorney General Opinion: Family farmers are now fighting for their lives as a new 30,000-cattle feedlot threatens to dewater their domestic wells. Click here for their story in The New York Times
In June, these family farmers partnered with the Center for Environmental Law & Policy and the Sierra Club – represented by Earthjustice – to file a lawsuit challenging AG McKenna’s water opinion.
Background
Washington’s domestic well exemption includes an allowance for stockwatering. The exemption allows use of up to 5,000 gallons per day for rural homes. Part of that quantity may also be used to supply water for family livestock.
In 2005, at the request of Senator Bob Morton (R-Orient) and Janea Holmquist (R-Moses Lake), Washington Attorney General Rob McKenna issued a controversial opinion that the stockwatering exemption allows unlimited use of exempt wells to water livestock in unlimited quantities. In other words, exempt wells may be used for industrial dairies, feedlots, and CAFOs (Concentrated Animal Feedlot Operations), regardless of how much water is used. The AG opinion conflicts with the original policy of the Department of Ecology and an administrative court case (DeVries v. Ecology, PCHB No. 01-073 (9/27/01)) in which the state water court (the Pollution Control Hearings Board or PCHB) ruled that the water right permit exemption could NOT be used in unlimited quantities for an industrial dairy.
2005 AG Opinion No. 17 rationalizes the unpermitted use of millions of gallons of water per day in dairies or feedlots on the placement of a comma in the statute. The opinion completely fails to consider legislative history. The AG’s opinion also fails to consider the rule that exceptions to the water code must be construed narrowly (i.e., all proposed water uses must first obtain a permit).
In May 2008, University of Washington Law Review published an article by Kara Dunn criticizing the 2005 AG Opinion.
The Impacts of the 2005 AG Opinion
Dairies and feedlots in eastern Washington are beginning to pop up, pumping large quantities of water without a permit. For example, the Watts Brother Dairy in Benton County, which was recently acquired by agricultural giant ConAgra uses unpermitted wells to serve 2,200 dairy cows, using at least 77,000 gallons of water per day for the cows. Thomasson Double T Dairy, near Mesa in Franklin County, uses unpermitted wells to supply water to 400 cows.
Most recently, Easterday Ranches has proposed to build a 30,000-head cattle feedlot near Eltopia (north of Pasco), based on exempt wells. Water usage is expected to approach 1 million gallons per day or more in this extremely hot and arid dryland-farming country.
Counties are happy to certify that the use of exempt wells provides sufficient water supply for these large industrial operations, even though the water usage is unpermitted. Meanwhile, the Department of Ecology is unable to do anything other than warn against impairment of other water rights and instream flows. (See, for example the Watts Brother letter.) Because the AG Opinion is written by their own attorneys, Ecology has declined to take action to control or prevent this new form of abuse of exempt wells.
The Five Corners-CELP Lawsuit
On June 30, 2009, CELP joined with Five Corners Family Farmers and Sierra Club in filing a lawsuit challenging the 2005 Attorney General Opinion that purports to authorize unlimited use of water for livestock purposes, including large dairies and feedlots. The case is now pending in Franklin County Superior Court. CELP and its allies are represented by Janette Brimmer and Kristen Boyles, attorneys with Earthjustice’s Seattle office.
On November 23, 2009 CELP cleared a challenge to our standing to bring this lawsuit. We anticipate a hearing on the merits of our lawsuit in early 2010.
The Legislative Stockwater Workgroup
In late 2008, as the state was trying to determine its position on unlimited stockwater, Ecology Director Jay Manning urged legislators to address the issue of stockwater and exempt wells. Several bills were filed during the 2009 session, two of which received a hearing. HB 1091 would clarify that all listed uses of permit-exempt wells are subject to the 5,000 gpd limitation, and also grandfather existing stockwater use. HB 1489 would allow up to 350 acre-feet per year in permit-exempt withdrawals for stockwater purposes. Neither bill advanced to the floor.
With a live controversy and no fix in sight, the legislature decided to study the matter over the interim. An unfunded proviso directed Ecology to convene a working group, composed of agricultural, environmental, tribal, agency and legislative representatives, who are directed to “review issues surrounding the use of permit-exempt wells for stock-watering purposes and . . . develop recommendations for legislative action.” The working group met several times between August and December 2009.
The second meeting focused on the status of water resources affected by stock watering, including a presentation by CELP regarding the over-appropriated status of water resources around the state. To date the Stockwater Working Group has not developed a consensus recommendation. CELPS disagrees with proposals to grandfather existing stockwater exempt well use, to allow future exempt well uses in large quantities, to immunize stockwater use from relinquishment (“use it or lose it”) requirements.
CELP proposes that the state acknowledge that unlimited use of water without a permit was never authorized for stockwater use (or any other reason) and tha the state move to create strategies to ensure that livestock operations can mitigate future uses (including incentives to attract water transfers, water banks, etc.)
