A few years ago, Easterday Ranches, one of the largest feedlot operators in the Northwest, began planning a new 30,000-head facility in eastern Washington's Franklin County. Easterday purchased some water rights from a nearby farm entitling it to withdraw 282,106 gallons of groundwater per day, 58,921 of which could be used for drinking water for the cows. But the feedlot would need around ten times that: between 450,000 and 600,000 gallons daily for drinking water alone. Such a disparity would seem problematic in a place like Franklin County, one of the driest spots in Washington, where new groundwater pumping permits haven't been issued in years.
Not so, as I reported in 2009: "Wells for watering livestock do not require a permit in Washington. The state used to limit such withdrawals to 5,000 gallons a day. But the attorney general in 2005 interpreted the stock-watering exemption as unlimited, allowing even industrial cattle operations to pump large amounts of water without regulatory review."
A group of the Easterday feedlot's neighboring farmers and environmental groups sued the state in 2009 challenging the 2005 opinion, claiming the law was never intended to cover industrial operations. The farmers feared that large new groundwater withdrawals would eventually dry up their wells. Though Easterday said it would drill deep for its water to protect shallower wells, the farmers had real reason to worry, Paul Stoker, executive director of the Columbia Basin Ground Water Management Area, told me in 2009. Aquifers in the area were already declining, and seeing little recharge.
The case went all the way to the state Supreme Court, which in a 6-3 decision late last month, ruled in favor of the state, Easterday, and other cattle producers who filed friend of the court briefs.
A 1945 state law clearly exempted from permitting groundwater withdrawals for domestic use so long as they didn't exceed 5,000 gallons per day, or for watering lawns and gardens less than a half acre in size. But a careful parsing of single clause in the law led the court to decide that groundwater withdrawals for watering livestock were exempt no matter how large.
Aside from livestock producers who benefit directly from the exemption, it's difficult to find anyone to defend Washington's stock-water loophole as sound policy. Dan Partridge, communications manager for the state Department of Ecology's water resources program, told me with surprising candor in 2009: "An unlimited exemption for stock-watering is counter to good water policy, and is something that should not be allowed." Yet his agency, bound by the 2005 AG opinion, was in the uncomfortable position of defending the policy in court. (It's worth noting that Washington's livestock loophole is certainly not the West's only example of hands-off groundwater management. California, for instance, is infamous for its laissez-faire approach to regulating groundwater; it doesn't require groundwater permits at all.)
Environmental groups involved in the lawsuit have promised to lobby the legislature to nix the stock-water exemption. But it won't be easy. The Washington legislature has passed up opportunities to address the stock-water exemption in past sessions. And the ag lobby is already making their opposition to reform clear. The crux of their message to Washington lawmakers, Scott Dilley of the Washington Farm Bureau told the Capital Press: "Just leave us alone. Let us do what we do."
Cally Carswell is HCN's assistant editor.
Photo: A Washington feedlot, courtesy of flickr user, brewbooks.