A proposed policy change by Washington state’s Department of Ecology (DOE) has been temporarily halted, according to DOE officials, amid backlash from producers and state politicians. The revisions, if enacted, would have required Washington ranchers to obtain a water right in order to allow their livestock to drink from streams and other surface water. This requirement, say ranchers and policy experts, represents a radical departure from how state water law has previously been administered.
While Washington water law extends all the way back to 1917, the revisions in question concern a policy introduced by DOE in 1994 in an effort to encourage landowners to install diversions and troughs to create off-stream water sources for livestock. “There was no requirement; it wasn’t something that you had to do,” says Pam Lewison of the Washington Policy Center. “DOE recognized that there are plenty of places in our state where you can’t reasonably bring in the equipment to make that happen.”
Though the policy is not itself part of the law, it is meant as a guide for DOE staff when advising landowners or responding to complaints. Of primary concern is a provision of the original policy stating that, in the case of small diversions for troughs, changes to existing water rights would not be required. However, when the proposed revisions were released for public comment at the end of November, a sentence had been added to this paragraph, which read: “A water right is required whether the stock water is through a diversion or is directly consumed from the surface water body.”
According to DOE spokesman Jimmy Norris, the agency had no intention of changing existing law. “It wasn’t meant to change anything on the ground; it was meant to clarify the wording,” he says. Instead, DOE maintains that a water right to allow animals to drink from a stream has always been a requirement. “The surface water code, written in 1917, says that any beneficial use of water requires a water right,” says Norris. “We didn’t realize that the misunderstanding was so widespread.”
However, according to Lewison and others who criticized the revisions, if this is a misunderstanding, it is one that has existed for 104 years. “There has never been a legal requirement for any rancher to have a permit for surface water consumption,” she says. “How would you even write a permit for water consumption by an animal?” she adds. “There is no way to estimate that. Washington state has always guaranteed stock watering access to surface water.”
Problematically for ranchers, the 1917 water code never actually mentions livestock. While there is a stock water exemption that was added to the law in the 1940s, that passage is specific to pumped groundwater, not surface water. This means that DOE’s assertion hinges on its claim that stock watering is a “beneficial use” of water under the law, something that Lewison says has never previously been the case.
“Stock watering is not explicitly in the law, but it is how the law has always been enforced,” she said. “DOE’s take on this is an entirely new interpretation.”
Other detractors have cited a 1969 addition to the water law, in which livestock is mentioned. Under that portion of the law, DOE is required to set and maintain minimum instream flow volumes throughout the state. One of the stated purposes for maintaining these flows is to guarantee adequate water “to satisfy stock watering requirements for stock on riparian grazing lands.”
Perhaps most concerning, says Lewison, is the apparent potential for DOE to enact major legal changes via minor policy alterations, virtually without oversight. “The larger issue here is that DOE is starting to reach into existing policy and change it without asking for input from the people who are directly affected by it,” she says.
On Dec. 3, just a few days after the proposed revisions were released for public comment, DOE temporarily halted adoption of the changes and suspended the comment period. While they have not altered their stance on how they interpret the law, they have agreed to meet with affected parties and to explore potential options before continuing forward.
Ashley House, executive vice president of the Washington Cattlemen’s Association, credits state Sen. Judy Warnick (R-13), as well as Congressmen Joe Schmick (R-09) and Tom Dent (R-13), for pressuring DOE to reconsider their decision. “They did a lot to press DOE on the ramifications of what they were proposing,” she said. “We’re grateful they got DOE to suspend the process and to commit to meeting with stakeholders, and to doing more due diligence than they were otherwise intending to do.” — Jason Campbell, WLJ correspondent
