WASHINGTON SUPREME COURT ALLOWS UNLIMITED UNPERMITTED DIVERSION OF GROUNDWATER FOR STOCK-WATER RIGHTS

摘要

Washington law generally requires permits for groundwater withdrawals, but exempts certain uses, including landscape watering and domestic and industrial uses. All of these exemptions have some language that clearly qualifies the uses, such as "garden not exceeding one-half acre" or "domestic uses in an amount not exceeding five thousand gallons" per day. Wash. Rev. Code § 90.44.050. Although one possible reading of that statute would have read the 5,000-gallon limit to also apply to withdrawals for stock-watering purposes, which is the way the state Department of Ecology (DOE) interpreted the statute until 2005, the Washington Supreme Court determined in Five Corners Family Farmers v. State, 268 P.3d 892 (Wash. 2011), that the statutory exception for "any withdrawal of public groundwater for stock-watering purposes" should be read literally. Thus, in Washington, the state may not require permits for the use of groundwater by any stock-watering operations no matter how large the quantity, in this case between 450,000 and 600,000 gallons per day, and regardless of the impact on other water users or the public. The court did acknowledge the rules of statutory interpretation that if two possible interpretations of a statute were reasonable, a court could turn to legislative history, and that statutes should not be interpreted so as to reach an absurd result. Id. at 900. It found, however, that the pre-2005 DOE interpretation of the exception, urged by the plaintiffs, that would limit unpermitted stock-raising water rights to only 5,000 gallons per day was not reasonable, so the statute was not ambiguous and the court would not turn to legislative history. Furthermore, since it was conceivable that at the time the statute was enacted "the legislature believed that stock-watering was sufficiently important, and its impact sufficiently slight, that a balancing of interests categorically justified groundwater withdrawals without consideration of other factors," the result was not absurd. Id.