| November 23, 2005
OLYMPIA…Washington dairy and
livestock owners who have questioned how much groundwater they can draw for
watering their livestock now have more certainty and clarification on the
matter, thanks to a new formal opinion from the Washington State Attorney
General’s office. Sen. Bob Morton, R-Orient, and Rep. Janéa Holmquist,
R-Moses Lake, asked for the attorney general opinion after the state
Department of Ecology (DOE) imposed a 5,000 gallon-per-day limit on the
amount of groundwater livestock owners could draw without a permit.
“This is a victory not only for dairy and livestock
owners, but for those who want to keep state agency rulemaking in check,”
Morton said. “There is no reason why a state agency should ‘evolve’ its
rulemaking over time. That only causes uncertainty and confusion. It’s the
job of the Legislature to set policy, not state agencies. This sets things
right.”
“This was a significant interpretation of our state’s
water laws. We felt it was important to clarify whether or not the
Department of Ecology has authority to develop policy without direction from
citizens or their elected representatives,” said Holmquist. “When we see
state agencies overstepping their authority and setting policy outside the
parameters of the law, we’re going to push back.”
Historically, under the 1945 stock water exemption, the
state has not limited the amount of water livestock owners can draw to water
their stock. More recently, DOE’s interpretation has “evolved” to limit the
state’s stock water exemption and water withdrawals to 5,000 gallons per
day. A Pollution Control Hearings Board (PCHB) decision agreed, causing
serious water access problems for livestock operations. It also created
financing problems, since banks would not loan money to dairy or livestock
ranchers without a clear indication they would have the water needed to
operate.
In January 2003, a state Court of Appeals read the statute
differently, rejecting the views of DOE and PCHB that an administrative
agency can alter the meaning of a statute to meet “changing societal
conditions.” The court also clearly noted that the power to do so is
reserved only for the Legislature, saying, “When a statute is rendered
obsolete by changing conditions, the remedy is for the legislature to amend
it; neither an administrative agency nor the courts may read it in a way
that the enacting legislature never intended. . . It must be amended by the
current legislature, not the PCHB or DOE.”
Earlier this year, Morton and Holmquist asked Attorney
General Rob McKenna for a formal opinion on the issue. That opinion,
released Friday, clarifies that:
- The law does not set a limit on the quantity of water
than can be withdrawn for stock-watering purposes;
- The Department of Ecology does not have the authority
to impose a numeric limit by making a rule; and
- The agency may not change its interpretation of a
statute based on its belief that a different interpretation would be
better policy, stating that this is the Legislature’s job, not one
belonging to a state agency.
Morton serves as ranking Republican of the Senate Water,
Energy and Environment Committee and is a member of the Senate Agriculture
and Rural Economic Development Committee. Holmquist is a member of the House
Economic Development, Agriculture and Trade Committee. Both lawmakers serve
on the Joint Legislative Committee on Water Supply During Drought, and have
long been advocates for supporting citizens’ water rights throughout the
state and keeping state agency rulemaking in check.
The formal opinion is posted on the Attorney General’s Web
site at:
http://www.atg.wa.gov/opinions/opinion_index.shtml
The opinion is AGO 2005 No. 17.
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For more information contact:
Rebecca Japhet (360) 786-7516 or
Japhet.Rebecca@leg.wa.gov
John Sattgast (360) 786-7257 or
Sattgast.John@leg.wa.gov
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