AG [Attorney General] unblocks water spigot for livestock
(Note from NM: When coupled with the WRIA [Water Resource Inventory Areas] 17 instream flow issue and the Department of Ecology's recent recognition of the Kim case, it is interesting that the DOE is accepting both. This raises a couple of interesting questions, especially in light of how some organizations are viewing these developments. The first question is whether or not the Department of Ecology is hoping for legislative changes to Washington State's body of water law to a legislative solution more in keeping with the department's previous stance on issues surrounding [Revised Code of Washington] RCW 90.44.050 http://www.mrsc.org/mc/rcw/RCW%20%2090%20%20TITLE/RCW%20%2090%20.%2044%20%20
CHAPTER/RCW%20%2090%20.%2044%20.050.htm, the exempt well provision in the state statutes. With Director Jay Manning's assurance that the department will not propose changes in law comes a second question: Has an opening been created for nongovernmental organizations to sue the Department of Ecology and the state seeking a court-directed change in policy? Things keep getting curiouser and curiouser...)
December 9, 2005
Washington State Staff Writer based in Ellensburg
Capital Press Agriculture Weekly
P.O. Box 2048
Salem, Oregon 97308
It’s what Washington state livestock producers have been saying all along -- state law does not limit the amount of groundwater that can be withdrawn daily for livestock use without a permit.
Producers are applauding a formal opinion from the state attorney general that agrees with the long-held livestock industry interpretation of a 1945 state law that covers exempt wells.
“We are ecstatic that the attorney general reads the law the same way we've read it for more than 50 years,” said Jay Gordon, executive director of the Washington State Dairy Federation in Elma.
State law requires a water-right permit for surface or groundwater withdrawals, although there are certain exemptions from the permit requirements for groundwater use. Before receiving the November 18 opinion, the state Department of Ecology [DOE] had interpreted the law as limiting all exempt-well uses, including for livestock, to no more than 5,000 gallons a day.
In the opinion issued November 18, the attorney general said the law exempts withdrawals of groundwater for livestock watering from the permitting requirement and does not set a limit on the quantity of water that can be withdrawn.
The opinion also said the Department of Ecology does not have the authority to impose a categorical limit on the amount of groundwater that can be withdrawn for livestock watering without a permit, although the department’s statutory authority to regulate the use of water could affect those withdrawals in certain cases, for example, when new withdrawals could effect hydraulic continuity.
The opinion also said an agency cannot alter its interpretation of a law in a way that is inconsistent with the law’s language and legislative intent “based on its belief that a different interpretation would better advance sound public policy.”
“The attorney general’s opinion is about the best seven pages you can read,” Jack Field, executive vice president of the Washington Cattlemen’s Association in Ellensburg, said in a telephone interview. “It’s what we've been saying all along.”
“It’s paramount that we hang onto that exemption,” said Ted Wishon, a Colville cow-calf producer and vice president of the Cattle Producers of Washington. “It doesn't take much to break the 5,000-gallon mark. It’s important for grass-roots cattle producers to have the exemption.”
The opinion will have a positive impact for cattle feeders, said Ed Field, executive director of the Washington Cattle Feeders Association in Quincy.
The opinion was sought by Rep. Janea Holmquist, R-Moses Lake, and Sen. Bob Morton, R-Orient.
Holmquist said the Department of Ecology’s interpretation limiting stockwater use was causing problems for producers in her district and elsewhere in the state. Lenders are reluctant to provide financing for dairymen or ranchers faced with uncertainties about water supplies, she said.
“When an agency re-interprets the law, we need to push back,” Holmquist said.
Jay Manning, Department of Ecology director, said the state law is ambiguous. But Manning said the Department of Ecology will abide by the new attorney general’s opinion.
“We will not take any action to limit groundwater use under the stockwater exemption to 5,000 gallons per day,” Manning said in a news release. “Our actions will be consistent with the attorney general’s opinion.”
Jack Field said industry organizations are already bracing for attempts to challenge or change the state law.
“The big message to the industry is ‘Don't sit back,’” Field said. “The hard part will be to defend the law against a potential legislative onslaught.”
Holmquist said she is prepared if there is an attempt to change the law when the Legislature meets in January. She said she met with Manning on December 1 and received assurances that the Department of Ecology would not propose a new law.
“The question of water availability is critical to the livestock industry,” said Holmquist who grew up in a cattle-producing family. “Agriculture, including livestock, is an important part of the state economy. Producers need water to stay in business.”
The formal attorney general’s opinion can be found at: http://www.atg.wa.gov/opinions/2005/2005_17.htm It is AGO 2005 No.17.
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Also published here:
Full Text of AGO 2005 No. 17
AGO Opinion, Rob McKenna, Attorney General of Washington [State]
– WATER RIGHTS – DEPARTMENT OF ECOLOGY – RULES AND REGULATIONS –
Interpretation of statutory language exempting withdrawals of
groundwater for stock-watering from permitting requirements.
1. RCW 90.44.050 exempts withdrawals of groundwater for stock-watering purposes from the permitting requirement,
setting a numeric limit on the quantity of water withdrawn.
2. The Department of Ecology does not have authority to impose a categorical limit on the quantity of groundwater
that may be withdrawn for stock-watering without a permit. In certain circumstances, the Department of Ecology’s
statutory authority to regulate the use of water may affect or limit such withdrawals, just as it may affect or limit
for other purposes.
3. An agency may not alter its interpretation of a statute in a manner that is inconsistent with statutory language and
intent to address changed societal conditions.
Cite As: AGO 2005 No. 17
Cite As: AGO 2005 No. 17
By letter previously acknowledged, you have asked for an opinion interpreting RCW 90.44.050. Under this statute, certain withdrawals of groundwater may be made without applying for and receiving a water right permit. You have posed the following questions:
1. Does RCW 90.44.050 restrict groundwater withdrawals without a permit, for stock-watering purposes, to 5,000 gallons per day?
2. If RCW 90.44.050 does not limit such groundwater withdrawals for stock-watering to 5,000 gallons per day, may the Department of Ecology implement rules imposing such a limit?
[original page 2] 3. May an agency interpret and apply statutory language differently over time due to its perception of changing societal needs or the agency’s evolving public policy perspective?
RCW 90.44.050 authorizes groundwater withdrawals for stock-watering purposes without a water right permit and does not limit the amount of such withdrawals to any specific quantity. The Department of Ecology (Ecology) lacks statutory authority to require a permit as a condition to the withdrawal of groundwater for stock-watering purposes, or to categorically limit the amount of water that may be withdrawn for such purposes. In certain circumstances, statutes administered by Ecology would authorize it to affect or limit withdrawals of water for stock-watering purposes, just as they would authorize Ecology to affect or limit other exempt and nonexempt withdrawals. An administrative agency may not interpret a statute in a manner that is inconsistent with its language and legislative intent based on its belief that a different interpretation would better advance sound public policy, but may change its interpretation based on changes in case law, new information about legislative intent in enacting the statute, or where the statute is sufficiently broad to reasonably permit a changed interpretation.
Your questions concern a portion of the state’s groundwater code, originally enacted in 1945 and codified as RCW 90.44. The key section giving rise to your questions is RCW 90.44.050, which provides as follows:
After June 6, 1945, no withdrawal of public ground waters of the state shall be begun, nor shall any well or other works for such withdrawal be constructed, unless an application to appropriate such waters has been made to the department and a permit has been granted by it as herein provided: EXCEPT, HOWEVER, That any withdrawal of public ground waters for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW 90.44.052, or for an industrial purpose in an amount not exceeding five thousand gallons a day, is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions of this chapter: PROVIDED, HOWEVER, That the department from time to time may require the person or agency making any such small withdrawal to furnish information as to the means for and the quantity of that withdrawal: PROVIDED, FURTHER, That at the option of the party making withdrawals of ground waters of the state not exceeding five thousand gallons per day, applications under this section or declarations under RCW 90.44.090 may be filed and permits and certificates [original page 3] obtained in the same manner and under the same requirements as is in this chapter provided in the case of withdrawals in excess of five thousand gallons a day.
RCW 90.44.050 (italics added). Structurally, this section states: (1) a general rule requiring a water right permit for any withdrawal of public groundwater; (2) a proviso excepting identified categories of withdrawals from the general rule—i.e., allowing them without a permit; (3) a second proviso allowing Ecology to require persons making withdrawals excepted from the permit requirement to provide information about the means and amounts of such withdrawals; and (4) a third proviso giving persons, authorized by the statute to withdraw less than 5,000 gallons a day without a permit, the option to obtain a water right through the generally applicable permit process. Under the statute, an authorized use of groundwater without a permit establishes a water right to the same extent as a right established by permit.
With this statutory background, we turn to your questions:
RCW 90.44.050 restrict groundwater withdrawals without a permit, for
stock-watering purposes, to 5,000 gallons per day?
Your question is one of
statutory construction and, as such, is governed by rules that courts
apply in construing statutes. The
fundamental object of statutory construction is to ascertain and carry
out the Legislature’s intent.
We conclude that the first proviso to RCW 90.44.050 makes it plain that groundwater withdrawals for stock-watering are exempt from the permit requirement, and that the exemption is not limited to withdrawals of less than 5,000 gallons a day. The relevant language exempts:
[original page 4] any withdrawal of public ground waters for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW 90.44.052, or for an industrial purpose in an amount not exceeding five thousand gallons a day[.]
RCW 90.44.050 (italics added). Based on its ordinary language and rules of grammar, the first proviso exempts: any withdrawal for stock-watering purposes, [any withdrawal] for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, [any withdrawal] for single or domestic group uses in an amount not exceeding 5,000 gallons a day [or as provided in RCW 90.44.052], or [any withdrawal] for an industrial purpose in an amount not exceeding 5,000 gallons a day.
Of these four categories of withdrawals, the third (single or group domestic use) and the fourth (industrial use) are expressly limited to withdrawals of less than 5,000 gallons a day. The second category (watering a lawn or a noncommercial garden) is not limited to 5,000 gallons a day but contains an acreage limit. By contrast, the first category (stock-watering purposes) contains no language limiting the amount of the withdrawal. Thus, the grammatical structure and plain language of this proviso indicates that of these four categories, groundwater withdrawals for stock-watering purposes are not limited. Indeed, the language of the exceptions makes it evident that the Legislature was well aware of how to limit exempt withdrawals when it so chose, and it did not do so with respect to stock-watering.
If RCW 90.44.050 ended
with its first proviso, this would be the end of the inquiry.
However, the inquiry does not end with consideration of only the
first part of RCW 90.44.050. In
determining the meaning of statutory language, the courts interpret a
statute as a whole “in the context of the entire act” in which it
& Gwinn, 146 Wn.2d at 10 (quoting Estate
of Lyons v. Sorenson, 83 Wn.2d 105, 108, 515 P.2d 1293 (1973)).
“[P]lain meaning is still derived from what the Legislature has
said in its enactments, but that meaning is discerned from all that the
Legislature has said in the statute and related statutes which disclose
legislative intent about the provision in question.”
page 5] Accordingly, it is necessary to consider the rest
of the statute and related statutes to determine whether they limit the
stock-watering exemption to 5,000 gallons a day, or create an ambiguity
with respect to the amount of water that may be withdrawn without a
permit for stock-watering purposes.
As noted above, the second proviso states that Ecology may
require information from any person making “any such small
withdrawal” as to the means or amount of the withdrawal.
The third proviso gives persons making withdrawals “not
exceeding 5,000 gallons a day” without a permit the option of applying
for and obtaining one. The
question then becomes whether either of these provisos limits the amount
of groundwater that may be withdrawn without a permit for stock-watering
purposes. Finally, in a
We do not read either the second or the third
proviso as altering the meaning of the first proviso as discussed above.
We note first the nature of provisos generally.
Provisos operate as limitations on or exceptions to the terms of
the statute to which they are appended and, as such, generally should be
strictly construed with any doubt resolved in favor of the general
provisions, rather than the proviso.
West Valley Land Co., Inc.
v. Nob Hill Water Ass’n, 107 Wn.2d
359, 369, 729 P.2d 42 (1986). When
interpreting a statute which contains an exception to the statute’s
general rule, especially when the general rule is unambiguous, the
exception should be strictly construed with any doubts resolved in favor
of the general provision, rather than the exception.
Similarly, the third proviso plainly is intended to modify the statutory exemptions from the permitting process to give a person the option to obtain a permit for certain categories of withdrawals that would otherwise be exempt from the permit requirement. The reference to “5,000 gallons a day” defines the category of water user that is authorized by the third proviso to apply for an (optional) permit. Again, we do not believe that this language can be read to impose a quantitative limitation on exempt stock-water withdrawals. The obvious purpose of the third proviso is to permit certain otherwise exempt water users to apply for a permit if they so choose, not to re-define the categorical exemptions in the first proviso. Thus, we conclude that neither the second nor third provisos imposes a quantitative limit on the amount of groundwater that may be withdrawn without a permit for stock-watering purposes.
It has been suggested
that the second and third provisos nonetheless create an ambiguity with
respect to the scope of the stock-watering exception, an ambiguity that
should be resolved by construing the statute to impose a
5,000-gallon-a-day limit on withdrawals for stock-watering purposes.
Under this view, the descriptive phrase “small withdrawal” in the
second proviso suggests that all withdrawals exempt from permitting by
the first proviso must be “small”; the reference to 5,000 gallons a
day in the third proviso quantifies the term “small withdrawal” at
5,000 gallons a day; and taken together, these provisos suggest that all
of the exceptions to the permit requirement under RCW 90.44.050 are
limited to 5,000 gallons a day. This
approach depends on reading language into the second and third provisos
that they do not contain, and reading language out of the first proviso
that it does contain, i.e., “any withdrawal” for stock-watering
purposes. All language in a statute is to be given meaning; a court may
not add language to a statute that it does not contain.
v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003).
As previously noted, a statute is not ambiguous merely because it
is subject to more than one conceivable
ambiguity depends on the existence of more than one reasonable
Finally, it could be suggested that an “open-ended” exemption for stock-watering is inherently inconsistent with the general policy of requiring permits for groundwater withdrawals in order to provide for an orderly and consistent administration of an important and limited public resource, the state’s water supply. The answer to this, first, is that broad policies must still be considered in light of the specific language the Legislature used in enacting the groundwater code. Here, the Legislature appears to have chosen its words carefully in defining which withdrawals should be exempt from permitting. As noted earlier, the Legislature may have concluded that the total amount of water used for this purpose was sufficiently small to justify the categorical exemption.
Second, the Legislature gave Ecology an important tool in the second proviso to RCW 90.44.050: Ecology may require information on the use of groundwater for stock-watering (and other exempt withdrawals) and can use the information for its administrative and enforcement decisions. This information would assist in assuring that exempt withdrawals do not impair more senior water rights, as well as providing a clearer picture concerning the uses of water in a given area. If the information shows that exempt withdrawals are jeopardizing the quantity or quality of water available, these facts can be drawn to the attention of the Legislature, which is the proper body to consider changes in the state’s water resource policies.
RCW 90.44.050 does not limit such groundwater withdrawals for
stock-watering to 5,000 gallons per day, may the Department of Ecology
implement rules imposing such a limit?
may not contradict legislative enactments.
Although Ecology lacks authority to categorically limit the amount of water that may be withdrawn for stock-watering purposes without a permit, other statutes that authorize Ecology to regulate the use of water may affect withdrawals for stock-watering, just as they may affect other [original page 8] exempt withdrawals and withdrawals requiring a permit. For example, in Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 94-95, 11 P.3d 726 (2000), the Supreme Court held that where Ecology has closed water bodies and ground water in hydraulic continuity with such bodies to new withdrawals, it may prohibit new withdrawals that “will have any effect on the flow or level of the surface water.” Such a new withdrawal might be a new withdrawal for stock-watering or it might be a new withdrawal for some other purpose. As a second example, consistent with principles of prior appropriation, Ecology has authority under RCW 90.44.130 “to limit withdrawals by appropriators of ground water so as to enforce the maintenance of a safe sustaining yield from the ground water body.” See also RCW 18.104.040(4)(g), authorizing Ecology to limit well construction in areas “requiring intensive control of withdrawals in the interests of sound management of the ground water resource.” Depending on the specific facts and circumstances, then, these statutes could affect withdrawals for stock-watering purposes, just as they could affect withdrawals for other purposes.
an agency interpret and apply statutory language differently over time
due to its perception of changing societal needs or the agency’s
evolving public policy perspective?
Your opinion request reflects your belief that, over time, Ecology has changed its interpretation of RCW 90.44.050. You suggest that Ecology originally read RCW 90.44.050 to exempt all withdrawals of groundwater for stock-watering purposes from permitting, and only recently began interpreting the statute to limit the stock-watering exemption to 5,000 gallons a day. We understand that Ecology disputes this view, and asserts that it has consistently interpreted the statute for many years, and perhaps since 1945. A legal opinion is not well-suited to resolving factual disputes, and it is not necessary to determine whether such a change occurred in order to answer your question. Consequently, the assertion is not addressed, and this opinion responds to your question as if it were hypothetical in nature.
Like a court, an
administrative agency is to interpret and apply statutes to carry out
the Legislature’s intent, consistent, of course, with binding case law
interpreting the statute. On
occasion, this responsibility may require an administrative agency to
change its interpretation or application of the law.
For example, a controlling court decision may conclude that the
agency’s interpretation is erroneous.
New circumstances may arise which make
it apparent that the agency’s prior interpretation did not comport
with legislative intent; or an agency’s reassessment of its prior
approach may lead it to conclude that its interpretation is inconsistent
with the language of the statute and should be modified.
In other cases, governing statutes may be sufficiently broad that
a changed interpretation would be consistent with statutory language and
legislative intent. Where
that is the case, an administrative agency would have the discretion to
choose the interpretation that it believes best implements the law.
Provided that its interpretation is constitutionally permissible
and is reasonably consistent with the statute being implemented, the
agency would not be precluded from changing its interpretation based on
its determination that a different approach would better serve
legislative intent. In
re Myers, 105 Wn.2d 257, 264, 714 P.2d 303 (1986) (administrative
rules are presumed valid and will be upheld if reasonably consistent
with the statute they implement);
However, none of these circumstances suggest that, based simply on its own policy preferences and without regard to statutory language and legislative intent, an agency is authorized to decide how to interpret a statute, or to change its interpretation. An agency may not alter its interpretation of a statute in a manner that is inconsistent with governing statutes simply because its own policy preferences have changed. See Kim v. Pollution Control Hearing Bd., 115 Wn. App. 157, 163, 61 P.3d 1211 (2003) (administrative agency may not alter the plain meaning of a statute to meet changing societal conditions).
We trust the foregoing will prove useful to you.
Very truly yours,
Deputy Solicitor General
Almost all of the language in RCW
90.44.050 dates from the adoption of the original groundwater code.
Laws of 1945, ch. 263, § 5.
The two parts of the statute that are newer than 1945 are:
(1) the third proviso, authorizing the option of securing a
permit for certain water uses that otherwise would be exempt, added
by Laws of 1947, ch. 122, § 1; and (2) the phrase “or as provided
in RCW 90.44.052”, in the first proviso.
This phrase was added in 2003 when RCW 90.44.052 was enacted
to allow a pilot program involving cluster housing in
Although it was not considering the scope of the stock-watering
exemption, the Court of Appeals, in
The overall scheme of this statute is to require a permit except for certain “small withdrawals.” The 1945 legislature defined a “small withdrawal” as (1) any amount of water for livestock; (2) any amount of water for a lawn or for a noncommercial garden of a half acre or less; (3) not more than five thousand gallons per day for domestic use; and (4) not more than five thousand gallons per day “for an industrial purpose.”
 The second and third provisos do not modify, restrict, or create an exception to that part of the statute stating the general rule that a permit is required prior to withdrawing groundwater. Neither proviso would make any sense in that context. For example, if the second proviso modified only the general rule of the statute requiring a permit for groundwater withdrawal, the statute would read as follows:
Similarly, if the third proviso modified that general requirement, it would read:
The provisos only make sense as modifications of all of the language that precedes them, including the categorical exceptions to the general requirement for a permit.
 The Legislature may have thought of stock-watering withdrawals as “small” in the sense that, at the time the exemption was enacted in 1945, most farms withdrew relatively small amounts of water for this purpose. This does not mean that the reference to “small” was intended to quantify the maximum quantity of water which could be withdrawn for stock-watering without a permit. If the Legislature had intended this result, surely it would have adopted far more direct and specific wording.
 In answering this question, we do not intend to imply that Ecology has adopted rules limiting unpermitted groundwater withdrawals, or is considering the adoption of such rules.