Franklin County judge tosses water rights case

A judge on Friday dismissed a lawsuit challenging a 2005 Washington state attorney general's opinion that allows large feedlots to tap an unlimited supply of groundwater without a permit.

The ruling upholds long-held assertions by livestock operators that state law doesn't limit groundwater use for watering animals, regardless of the operation's size. But it angered neighbors of a 30,000-head feedlot under construction in arid, remote southeast Washington whose only water supply comes from wells deep underground - wells they fear will go dry.

"This is all about money. Money talks. Always has, always will," said Blaine Dougherty, who with his brother still dryland farms property his grandfather bought in 1938.

The case centered on an Easterday Ranches Inc. feedlot near the small town of Eltopia, about 25 miles northeast of Pasco. One of the largest feedlot operators in the Northwest, with 30,000 cattle already near Pasco, the company bought a water right for dust control and to cool up to 30,000 cattle at the new lot. But the company planned to use a well that is exempt from a state permit to draw drinking water for the cattle.

Under a 1945 law, the state allows some wells to be drilled without a permit, as long as water usage is held to 5,000 gallons per day. They include livestock watering, small industrial uses, domestic use or noncommercial watering of a small lawn or garden.

Under Easterday's proposal, the amount of water that would be drawn is roughly equivalent to what would be used to irrigate 160 acres, according to the state Department of Ecology.

The conservation group Earthjustice filed a lawsuit last year on behalf of area farmers, the Sierra Club and the Center for Environmental Law and Policy.

Franklin County Superior Court Judge Carrie Runge dismissed the case Friday. She questioned whether the plaintiffs had standing in the case because their injury claim was "speculative."

Regardless, she said the statute exempting livestock watering from a permit requirement was "clear and unambiguous."

"If the Legislature had intended to limit stock water to gallons or acres, the Legislature would have done so," Runge said.

Assistant Attorney General Maia Bellon said she was pleased with the immediate ruling.

Cody Easterday declined to comment.

Earthjustice lawyer Janette Brimmer said she was most concerned for the feedlot's neighbors. Both she and CELP executive director Rachael Paschal Osborn said they may appeal.

"These folks can't wait until their wells go dry," Brimmer said. "Because there's no fixing it when that happens."

Brimmer had argued that, in 1945, lawmakers had no intention of allowing industrial-sized feedlots to tap an unlimited supply of water. Rather, she said, the exemption was intended to apply to family homesteaders who kept much smaller herds.

Besides, the use of water relates more to intensity, place and season of use than how many cattle are kept, she said.

"It matters if all the cows in the state are in Franklin County drinking from the same source of water," Brimmer said.

Just 1 percent of agricultural water use in Washington today is used for stock watering, which is a small amount, Bellon countered. Plaintiffs are attempting to change water policy, she said, which must be done through the Legislature and not the courts.

"The plaintiffs are asking for additional limits that the Legislature simply did not provide," she said.