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Stockwater Exemption under the Groundwater Code

Washington State Supreme Court Appeal  - Five Corners Family Farmers, et al., v. State of Washington, et al. No.84632-44

On December 22, 2011, in a 6-3 decision, the Washington State Supreme Court issued a ruling that the stockwater permit exemption is not subject to a quantity limit.  The Court held that the 5,000 gallon per day language in the statute did not apply to stock watering, but that stock watering is subject to all other water rights requirements.

The majority opinion (signed by 6 justices) closely followed the briefing that the Department of Ecology (Ecology) submitted to the Court.  The Court held that the “plain language” of RCW 90.44.050 is unambiguous and subject to one reasonable interpretation.  Under this interpretation, RCW 90.44.050 expressly provides four separate exemptions from permitting:

  1. stock watering (with no quantity limit);
  2. watering of a lawn or of a non-commercial garden not exceeding one-half acre in area;
  3. single or group domestic use not exceeding 5,000 gallons per day; and
  4. industrial use not exceeding 5,000 gallons per day.

As such, when the law was passed in 1945, the legislature chose not to impose any quantity limit for stock watering.  And, if a different policy is warranted in light of changes in dairy and stock-raising practices since that time, it is the legislature’s prerogative on whether to change the law.

In a key footnote, the majority emphasizes that while the groundwater permit exemption for stock watering is not quantity-limited, such use is subject to other water law limitations, such as the prohibition against impairment of senior water rights (including those based on minimum instream flows or stream closures established by rule).

The majority and dissenting opinions can be accessed below:

Stock Water Working Group

The 2009 Legislature directed Ecology to convene a stockwater working group to include legislators, four members representing agricultural interests, three members representing environmental interests, the attorney general or designee, the director of the Ecology or designee, the director of the Department of Agriculture or designee, and affected federally recognized tribes.

The working group met five times in 2009-2010, reviewed issues surrounding the use of permit-exempt groundwater wells for stock-watering purposes, developed recommendations for legislative action, and submitted a legislative report of its activities and recommendations to the governor and the appropriate legislative committees.

The Stock Water Working Group Report at Page 8 provided:

"Conclusions: The Working Group believes that the discussions concerning the issues surrounding the use of permit-exempt wells for stock-watering purposes have been fruitful. However, there is some concern from some Working Group members that it is premature to weigh in on this issue as there is litigation currently pending in Franklin County.  Moreover, challenges to the Municipal Water Law of 2003 are currently before the Washington State Supreme Court on, among other things, a challenge that the law is unconstitutional because it has a retroactive effect as opposed to being curative legislation. Some members would prefer to wait on proposing legislation addressing the stock water exemption until direction is received from the Supreme Court on when water legislation is considered retroactive as opposed to curative.  Nonetheless, the Working Group would like to continue discussions."

Case Background

Washington State Supreme Court Appeal  - Five Corners Family Farmers, et al., v. State of Washington, et al. No.84632-44

Franklin County Superior Court Case:

Five Corners Family Farmers, et al. v. State of Washington, et al. Case No. 09-2-51185-6

Summary Judgment Motions and Amicus Briefs

Preliminary Filings and Motions

In the news

Stockwater Exemption

State Water Use Laws: The Ground Water Permit Exemption RCW 90.44.050

The groundwater permit exemption allows certain types of groundwater uses without requirement to apply for a water right permit from Ecology.

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