Court nixes reconsideration request by DOE- Small nursery can use their well to water their plants without getting a permit from the state
The court recently denied a request by the state’s Ecology Department to reconsider its decision.
Ecology has until March 28 to seek a review of the decision from the state Supreme Court. Ecology spokesman Curt Hart said the department has not yet decided if it will pursue that course of action.
Because the court’s ruling addresses several important issues pertaining to groundwater use, the decision could have widespread implications for livestock owners and small nurseries across the state.
At the center of this legal dispute over groundwater are Joo Il and Keum Ja Kim, owners of Central Valley Greenhouse in Poulsbo, who use between 100 to 300 gallons of water from their well each day to either hand water or “wand water” the plants in their nursery.
The Kims have owned the property – the site of both their home and their business – since 1990.
In 1998, Ecology ordered the Kims to stop using water from their well for their nursery unless they applied for and obtained a permit. Ecology’s action was triggered by the Kims’ need to clarify whether they had the legal right to use the water from their well for non-household uses. Without that clarification, Kitsap County would not give them a land-use permit they were seeking.
The Kims took the matter up the legal ladder, finally winning a decision in their favor from the appeals court.
Ag representatives say the court’s recent denial for reconsideration of its decision wasn’t unexpected. But Hertha Lund, water specialist with the state’s Farm Bureau, said it does buy some time to get the issue of groundwater use resolved on the legislative level.
“We hope that Ecology and the governor realize how critical this issue is to livestock operations and nurseries,” she said. “ The court has spoken with a supportive decision for agriculture. Ecology can’t just ignore that.”
Lund says she believes the issue is ripe for being solved in the Legislature.
“It needs fixing, and the governor knows that,” she said.
Livestock owners are hoping for a legislative fix that will clarify that a 1945 state statute dealing with groundwater use allows them unlimited use of water from what are known as “exempt wells.”
Ecology interprets the statute differently, saying that the statute limits livestock watering to 5,000 gallons per day.
Dairy, cattle and poultry owners warn that if Ecology’s interpretation prevails, the future of about one-third of the livestock operations in the state will be in peril.
SB 5077, which seeks to clarify the right of livestock owners to use more than 5,000 gallons per day to water their animals, has passed out of the Senate and into the House. It includes some of the language from the appeals court decision on the Kim case.
According to that decision, the overall scheme of the water statute in question is to require a permit (for groundwater) except in “small withdrawals.”
The court noted that the 1945 Legislature defined a “small withdrawal” as any amount of water for livestock; any amount of water for a lawn or for a noncommercial garden of a half acre or less; not more than 5,000 gallons per day for domestic use; and not more than 5,000 gallons for an “industrial purpose.”
The court also noted that though Ecology has not amended the 1945 statute, it altered its reading of the statute and now asserts the word “industry” excludes agriculture.
The court rejected that assertion, saying it wouldn’t be logical to allow a business in the construction, aluminum or automobile industries to take 5,000 gallons per day without a permit, while denying the same right to a commercial nursery in the horticulture industry.
In asking the court to reconsider its decision, Ecology said the decision overlooks Washington water law statute and Western water law authorities that overwhelmingly recognize that “industrial use” does not include “agricultural uses.”
Marianne Pratt, executive director of the state’s Nursery and Landscape Association, said that it would be a good step forward if the Legislature could resolve these groundwater issues during this legislative session.
“But we believe the unanimous court decision is clear enough in itself,” she said. “Commercial nurseries are an industry and have the same rights to water as other industries.”
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