Over the past several weeks, we've learned a great deal about the Department

of Ecology's instream flow rule-making process. Up to
this point, aside from

the information used for the questions asked in public meetings, we've been

pretty much content to leave most of that information in collections that

help us understand what is taking place in terms of the development of the

rule.

This past Friday, October 21, an article appeared in the Capital Press, a

weekly newspaper that is highly respected in the western states as a source

of good information for the agriculture community. The article discussed the

Department of Ecology's "discovery" that some of our local small

agricultural producers may be using water "illegally".

Because we have highly reliable information that runs completely counter to

the assertions apparently given to the reporter by officials from the

Department of Ecology, and because the information they provided is likely

causing anxiety for members of our community, we feel that it's time to

bring our information to the forefront. It's in the form of a published

opinion of the Appeals Court of the State of Washington, Division II, from

January 2003. The docket number is 27804-9-II, and the case name is Kim v.

Pollution Control Hearing Board, et AL. You may request a copy of your own

from the Clerk of the Court by telephoning your request to their office at

253-593-2970.

The opinion was not appealed by either the PCHB or the Department of

Ecology. In the absence of an appeal, the finding became settled law, which

carries the same force as if the Supreme Court of the State of Washington

had been the court in which the case was heard.

In a nutshell, the opinion finds that agriculture is an industry, and that

it qualifies for the industrial exemption portion of RCW 90.44.050, the law

that governs exempt well use. That means that you are allowed to engage in

commercial agriculture with an exempt well, that you are allowed to use up

to 5,000 gallons of water from that well every day, and that you are not

bound by the one-half acre that you are allowed to water for a noncommercial

garden.

The court rejected the Department of Ecology's and the PCHB's view that an

administrative agency can alter the plain meaning of a statute to meet

changing societal conditions. The power to do that is reserved for the state

legislature only, and the opinion provided plain-language instruction to the

Department of Ecology and the PCHB on this point.

>From what the article contains, it appears that at least some officials at

the Department of Ecology are under the impression that Kim v. PCHB doesn't

apply to them. From a simple reading of the court's opinion, we think it's

pretty safe to conclude that those officials are pretty far off base.

As you read on through this rather long posting, you'll find the text and

references of the published opinion in Kim v. PCHB. Although you may prefer

to read the article first, it's much more effective to read the opinion

first to give yourself the full context of the comments of the Department of

Ecology's officials.

=================================================

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION
II

No. 27804-9-II

JOO IL and KEUM JA KIM, Appellants,

v.

POLLUTION CONTROL HEARING BOARD, ET AL, Respondents.

Published Opinion

MORGAN, J. - Joo Il Kim and Keum Ja Kim appeal a ruling that they must

have a permit to use well water for their commercial nursery. Based on RCW

90.44.050, we reverse.

Since 1990, the Kims have owned
real property on N.W. Central Valley

Road in Poulsbo. The property is the site of their home and their business,

a commercial nursery called Central Valley Greenhouse. The nursery's

components are a greenhouse, a display area of less than a half acre, and

parking spaces for eight cars.

The property is served by a well that was drilled in about
1965. The

Kims take groundwater from the well for both their
residence and the

nursery. They use between 100 and 300 gallons per day "to directly water

(via hand watering and watering wand) the plants that they raise and offer

for sale to the general public." {1} They do not
have a permit to take water

from the well.

On August 28, 1998, the Department of Ecology (DOE) ordered
the Kims to

stop using well water for their commercial nursery unless they applied for

and obtained a permit. DOE did not order them to stop using well water for

their residence.

The Kims appealed DOE's order to
the Pollution Control Hearings Board

(PCHB). The PCHB affirmed, reasoning in part that it should interpret RCW

90.44.050 not in light of the intent of the 1945 legislature, but rather in

light of "our current scientific understanding of ground and surface water

continuity, the federal mandates to protect endangered salmon, and the

increasing demand for water to serve our growing population and economy."

{2}

The Kims appealed from the PCHB to
the superior court, but that court

also affirmed. The Kims then appealed to this court,
which reviews the

decision of the PCHB. {3}

RCW 90.44.050 is the governing statute. It was enacted in
1945. At all

times since then, it has provided essentially 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 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:

. . . {4}

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 parties agree that the first three types of withdrawal
do not apply

to the Kims' use of well water for their commercial
nursery. Accordingly,

the question for us is whether, when the Kims take
well water for their

commercial nursery, they are taking such water "for an industrial
purpose."

In 1995, DOE's Shorelines and Water Resources Program commented on this

"industrial" type of withdrawal in a document that it addressed
"to all

interested parties." It stated in part:

Following is an outline of Ecology's
current understanding regarding

the ground water exemption specified in Chapter 90.44 RCW. .
. . This letter

is provided to help reduce confusion and contribute to a common

understanding of when and where the ground water exemption does apply.

. . . {T}he
entire issue of the ground water exemption is very

controversial and is likely to be the subject of legislative action this

upcoming session. A strong possibility exists that one
or more portions of

the current statute will be changed. . . .

Under Washington's ground water
code, small users of ground water

have historically been exempted from the water right permitting process. . .

. This exemption . . . is specified in RCW 90.44.050. . . .

. . . .

The following is Ecology's
interpretation of the various portions of

the exemption language.

A. ". . . any withdrawal of
public ground waters for stock-watering

purposes . . ." This provision applies to water farm animals (cows,
horses,

etc.) drink in the course of grazing or otherwise being raised under natural

conditions. Commercial animal-rearing operations such as feedlots and

kennels are considered industrial uses of water. . . .

. . . .

D. " . . . for an industrial
purpose in an amount not exceeding five

thousand gallons a day . . ." Ecology interprets "industrial" in
the

broadest possible sense, to include "commercial" and any other
general

industry. Under this interpretation, a commercial dairy using less than

5,000 gpd would be exempt.

. . . .

Ecology will revise this letter in
accordance with any changes made

by the legislature. If you have any additional questions, please contact

Ecology's . . . regional office. . . .{5}

Since 1995, the legislature has not
amended RCW 90.44.050, despite a

number of proposals that it do so. {6} Ecology, however, has altered its

reading of RCW 90.44.050. It now asserts (1) that "the word `industry'

excludes agriculture"; {7} (2) that "to interpret the `industrial
purpose'

exemption to apply to irrigation would render meaningless the exemption for

noncommercial gardens less than one half acre in size"; {8} and (3) that
to

define "industrial purposes to include horticulture or agriculture would

increase the types of uses to which the exemption applies, thus undermining

the general rule that withdrawals must be permitted." {9}

We reject DOE's first assertion. At
least 24 Washington statutes, {10}

six Washington regulations, {11} and ten Washington cases {12} refer to the

"agricultural industry." At least 300 cases from other jurisdictions
do

likewise. {13} Webster's dictionary exemplifies the word "industry"
by

referring to "the poultry industry." {14} Given the words that the
1945

legislature chose to use, there is no logical reason to allow a business in

the construction industry, aluminum industry, or automobile industry to take

5,000 gallons per day without a permit, while denying the same right to a

commercial nursery in the horticulture industry. We hold that the words
"for

industrial purposes" must be applied according to their plain terms, and

that their plain terms include the Kims' commercial
nursery.

We reject DOE's second assertion. The "industrial
purposes" provision

exempts commercial nurseries but not noncommercial gardens. The

noncommercial garden provision exempts noncommercial gardens. Each provision

has its purpose, and neither provision is superfluous -- even if the

"industrial purposes" exemption is construed to include commercial

nurseries.

We reject DOE's third assertion. To recognize that the
"industrial

purposes" exemption includes all industries is not to allow water to be
used

more now than before; it is simply to recognize and apply the law that has

existed since 1945.

We do not overlook, but we do reject, the PCHB's apparent
view that an

administrative agency can alter the plain meaning of a statute to meet

changing societal conditions. When a statute is rendered obsolete by

changing conditions, the remedy is for the legislature to amend it; neither

an administrative agency nor the courts may read it in a way that the

enacting legislature never intended. Assuming without holding that RCW

90.44.050 is obsolete, it must be amended by the current legislature, not by

PCHB or DOE. Accordingly, we conclude that the Kims'
commercial nursery fell

within RCW 90.44.050's "industrial purposes" exemption; that the Kims could

lawfully take 100-300 gallons per day without a permit; and that the PCHB

erred by ruling to the contrary.

Reversed.

Morgan, J.

We concur:

Houghton, J.

Quinn-Brintnall, A.C.J.

1 Clerk's Papers (CP) at 73.

2 CP at 67.

3 Bowers v. Pollution Control
Hearings Bd., 103 Wn. App. 587, 596,

13 P.3d 1076 (2000), review denied, 144 Wn.2d 1005 (2001) (citing City of

Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46,

959 P.2d 1091 (1998)); Kaiser Aluminum & Chem. Corp. v. Pollution Control

Hearings Bd., 33 Wn. App. 352, 354, 654 P.2d 723
(1982).

4 Laws of 1945, ch. 263, sec. 5; Laws of 1947, ch.
122, sec. 1; Laws

of 1987, ch. 109, sec. 108.

5 CP at 38-40.

6 See, e.g., Wash. S.B. 5494 (1995);
Wash. S.B. 5593 (1995); Wash.

H.B. 1685 (1995); Wash. S.B. 5827 (1995); Wash. H.B. 1772 (1995); Wash.

S.S.B. 5517 (1995); Wash. S.S.B. 6698 (1996); Wash. S.B. 5275 (1997); Wash.

H.B. 2396 (1998); Wash. H.B. 3106 (1998); Wash. H.B. 1314 (1999); Wash. S.B.

5289 (1999). None of these bills passed.

7 Br. of Resp't at 9.

8 Br. of Resp't at 10.

9 Br. of Resp't at 10.

10 See, e.g., RCW 15.04.402; RCW
15.08.025; RCW 15.24.900; RCW

15.62.010; RCW 15.65.028; RCW 15.65.033; RCW 15.66.015; RCW 15.66.017; RCW

15.85.010; RCW 15.92.090; RCW 17.24.171; RCW 22.09.405; RCW 28A.300.090; RCW

28B.30.543; RCW 36.70A.020; RCW 36.70A.060; RCW 36.70A.177; RCW 43.23.035;

RCW 43.23.042; RCW 43.23.275; RCW 43.23.280; RCW 50.62.010; RCW 50.62.030;

RCW 79A.30.050.

11 See, e.g., WAC 16-470-800; WAC
16-482-001; WAC 16-524-002; WAC

16-470- 800; WAC 16-482-001; WAC 16-524-002; WAC 16-752-300; WAC 16-752-700.

12 King County v. Central Puget
Sound Growth Mgmt. Hearings Bd., 142

Wn.2d 543, 14 P.3d 133 (2000); City of Redmond v. Central Puget Sound Growth

Mgmt. Hearings Bd., 136 Wn.2d 38; Double D Hop Ranch v. Sanchez, 133 Wn.2d

793, 947 P.2d 727 (1997), 952 P.2d 590 (1998); City of Ferndale v. Friberg,

107 Wn.2d 602, 732 P.2d 143 (1987); Stender v. Twin
City Foods, Inc., 82

Wn.2d 250, 510 P.2d 221 (1973); Chas. Uhden, Inc. v. Greenough, 181 Wash.

412, 43 P.2d 983 (1935); Griffiths v. Robinson, 181 Wash. 438, 43 P.2d 977

(1935); State v. Clark, 43 Wash. 664, 86 P. 1067 (1906); Stewart v.

Washington State Boundary Review Bd., 100 Wn. App
165, 996 P.2d 1087 (2000);

Cox v. Lewiston Grain Growers, Inc., 86 Wn. App. 357,
936 P.2d 1191, review

denied, 133 Wn.2d 1020 (1997).

13 These cases are too numerous to
list but are available through

computerized research.

14 Webster's Third
New International Dictionary 1155-56 (1969).

=================================================

Now let's get into the article that appeared in the October 21, 2005 issue

of the Capital Press, written by Cookson Beecher. While you're reading the

article, keep the Kim case in mind, remembering that the decision was

published in January 2003. If the Department of Ecology was chastised by the

Washington Court of Appeals just a little more than two years ago, how can

they think that local citizens wouldn't learn about that and apply that

knowledge to what is happening now?

==================================================

Small-scale farmers face unexpected hurdle - water

Instream-flow rules could unravel
fabric of local agriculture

By COOKSON BEECHER

Washington State Staff Writer

The renaissance in agriculture fostered by small farms that
supply

fresh, locally grown food to local communities has run into an unexpected

roadblock in Washington state - one that will probably take a legislative

fix to overcome.

The issue comes down to what Department of Ecology officials
describe as

the "illegal" use of groundwater and surface water by some
small-scale

farmers.

In the case of water from exempt wells - those that don't need
to be

permitted as long as they're not drawing more than 5,000 gallons per day -

some farmers are using water from these wells to water crops and livestock.

Department officials say that's against state statute - no
matter how

small the plot they're watering may be or how little water they're using.

Wendy Balender, the department's
coordinator for instream flow rules,

said that although there's an exemption in the case of exempt wells that

allows for the irrigation of lawns as well as gardens up to one-half acre in

size, no such exemption exists for commercial agriculture, no matter its

size.

"If it's for commercial agriculture, there's no
exemption," she said,

adding that because this is state law, it would take the legislature to

change it.

This dilemma surfaced during public meetings about the
department's

proposed instream flow rule for the Quilcene watershed on the Olympic

Peninsula. But department officials readily concede that this issue is not

unique to the Quilcene.

"We're taking a significant pause in rulemaking on
this," said Balender,

adding that this issue extends beyond the Quilcene.

"We're changing our game plan. We want to reach out to
stakeholders.

We're not interested in shutting down farmers."

Nevertheless, she said that if people are diverting surface
water or

groundwater for agricultural enterprises, they need to have a water right.

"Farmers need to become informed about the water
they're using," she

said.

She also said that in the majority of the Quilcene watershed, there's

not enough water to issue new water rights.

Phil Wiatrak, Ecology Department's
watershed lead for the Quilcene and

other watersheds in the state, said that when this issue was brought up

during public meetings, it caught department officials by surprise.

"We hadn't been aware of it," he said.

Many small farmers were equally surprised, most of them
never dreaming

that they were using water illegally to water their crops or livestock.

A key component of the proposed rule in the Quilcene watershed is the

setting of minimum stream flows for rivers and streams in the watershed,

including Chimacum, Salmon, Snow, Tarboo
and Thorndyke creeks, as well as

the Big Quilcene and Little Quilcene
rivers.

Those instream flows are directed
at protecting salmon. And while

department officials declined to give advice about whether small-scale

farmers using water without official water rights should buy their seeds for

next year's crops, they also said that the department is "quite a ways
out"

on coming to a decision.

Jefferson County Commissioner David Sullivan, who has been
following

this issue closely, said when it comes to small-scale farmers' use of

limited amounts of water, it comes down to a matter of scale. He hopes that

the Ecology Department can come up with a solution that protects small-scale

farmers and also salmon.

He pointed out that this issue has surfaced during previous
legislative

sessions but that in the chaos of law making, it gets overridden by more

pressing issues.

He believes that a solution to this dilemma is essential
because

small-scale farmers play an important social and economic role by helping

keep land in open space and supplying people with good local food.

"I support them in this," he said. "They're
an asset. They add to the

rural character and the rural economy."

Sullivan is proud of successes made by the local watershed
planning

group in reaching consensus on 43 recommendations, pointing out that the

group includes government officials from a wide range of agencies,

scientists, local citizens, and the Jamestown S'Klallam tribe.

"I'd hate to see the plan undone with conflict at the
end over instream

flows," he said. "We really need to build on our successes instead of

veering toward a heavy handed regulatory approach."

Katherine Baril, director of
Washington State University Jefferson

County Extension, said that the growth of small farms that supply local

communities with food is happening statewide and nationwide.

"It's a renaissance in agriculture," she said.
"It's good economics for

the community, good for the environment, and good for food security."

The challenge, she said, is to create a system that keeps
enough water

in the streams for salmon, lets people grow local food, and involves enough

trust that people are willing to sit around the table to solve problems.

Cookson Beecher is based in Sedro-Wooley,
Wash. Her e-mail address is

[email-masked]

==========================================

Well ... what do you think? Is the Department of Ecology dealing with

Jefferson County's residents in a credible manner, or does this make you

feel as if there's something just a wee bit wrong with this process. For

instance, why are they coming to Jefferson County claiming that the people

who grow a bit more food than they need, so that they can take it to the

Farmers' Market, are using water "illegally"?

As if that's not enough, just how is it that the Department of Ecology feels

that it's OK to ignore the plain language of a court finding that doesn't go

their way?

Please feel free to share this with your neighbors, both those who live

here, and those who live far away. There are 62 WRIAs in Washington. Let's

make an effort to be sure that people living in each and every WRIA learn as

much as possible about what's happening here. What's happening here today is

going to be happening to them tomorrow ... unless we can make things change.

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