BEFORE THE POLLUTION CONTROL HEARINGS BOARD
STATE
OF WASHINGTON
|
TIMOTHY A. DENNIS and THOMAS DeVRIES, Appellants, v. STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY Respondent. |
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SUMMARY JUDGMENT ORDER |
The parties have filed cross-motions for summary judgment. The Department of Ecology (Ecology) requests entry of an order granting summary judgment upholding their compliance order and dismissing this matter. Timothy A. Dennis and Thomas DeVries (DeVries) request an order granting summary judgment reversing Ecology’s compliance order and instructing Ecology not to issue any compliance order restricting the quantity of groundwater that DeVries can use for stockwatering purposes. Additionally, DeVries requests the Board to strike numerous documents submitted by Ecology as not constituting admissible and relevant evidence of contemporaneous legislative history of the statute at issue in this appeal.
The underlying case involves an appeal of a compliance order (No. DE 01 WRCT-2868) issued by Ecology to DeVries in connection with the use of groundwater at the recently constructed DeVries Dairy. The compliance order required the Dairy to cease the use of groundwater in excess of 5,000 gallons per day.
Brian Faller represented Ecology. Brian Iller represented DeVries. The Board, comprised of Kaleen Cottingham, Robert V. Jensen, and James A. Tupper, Jr., heard oral arguments on this appeal on September 12, 2001. Kim Otis, of Gene Barker and Associates, provided court-reporting services.
Except as noted below in conjunction with the motion to strike, the Board has reviewed and considered the following pleadings and documents, together with all attachments thereto, filed in support and in opposition to both motions for summary judgment.
1. Agreed Statement of Legal Issues;
2. Joint Stipulated Facts;
3. Ecology’s Motion for Summary Judgment;
4. Declaration of Douglas McChesney;
5. DeVries’ Motion for Summary Judgment;
6. DeVries’ Memorandum in Support of DeVries Motion for Summary Judgment;
7. Declaration of Timothy Dennis;
8. Declaration of Brian Iller;
9. DeVries’ Memorandum in Opposition to Ecology’s Summary Judgment Motion;
10. Declaration of Brian Iller in Opposition to Ecology’s Summary Judgment Motion and in Support of DeVries’ Summary Judgment Motion;
11. DeVries’ Motion to Strike;
12. Ecology’s Response to DeVries’ Motion for Summary Judgment;
13. Ecology’s Reply in Support of its Motion for Summary Judgment;
14. Ecology’s Response to Motion to Strike;
15. DeVries’ Reply Memorandum in Support of DeVries’ Motion for Summary Judgment; and
16. DeVries’ Reply Memorandum in Support of Motion to Strike.
Based on this review and being otherwise fully apprised in the circumstances of this case, the Board enters the following order:
I.
Motion to Strike
DeVries challenges the admissibility and relevance of numerous documents submitted by Ecology as inappropriate evidence of legislative history. Granting a motion to strike is appropriate when the proffered evidence is not relevant to the issue at hand. In this motion, the question is whether the evidence is relevant to statutory construction. The evidence offered by Ecology appears not to be legislative history, but rather general information of circumstances existing at the time the legislature was considering adopting the groundwater code and information addressing subsequent interpretations of the legislation. Although the appellants make a compelling case on this matter, the Board did not rely on any of the contested materials submitted by Ecology in reaching its conclusion. Therefore, the Board does not find it necessary to rule on the motion to strike.
II. Summary Judgment motions.
Summary judgment is
appropriate where there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. CR 56. WAC
371-08-300. In this case, the parties
have stipulated to the facts, and thus there are no genuine issues of material
facts. The basic question is what, as a
matter of law, is the interpretation of RCW 90.44.050. Therefore, summary judgment is appropriate
in this matter. The summary judgment
motions will be addressed and organized according to the six issues presented
in this case. Those issues are as
follows:
1.
Is the exemption from permitting under RCW 90.44.050 for stockwatering
limited to 5,000 gallons per day, or is the exemption unlimited in quantity?
In 1945, the legislature
enacted the first groundwater code (1945 Wash. Laws Ch. 263, now codified in
chapter 90.44 RCW.) This code is
supplementary to the surface water code and builds to a great degree on the
principles of both the surface water code and western water law. RCW 90.44.020. Not only does the groundwater code contain substantive
provisions of water law, but it also contains the administrative controls
associated with having a permit system.
The groundwater code was created “for the purpose of extending the
application of such surface water statutes to the appropriation and beneficial
use of groundwaters within the state.”
90.44.020. Further, in RCW
90.44.030, the legislature clearly stated that the provisions of the
groundwater code shall not affect or impair any existing water rights.
The legislature
stated that:
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…
RCW 90.44.050.
This permit system for
regulating and controlling new groundwater withdrawals is the central purpose
of the 1945 groundwater code. For
purposes of statutory construction, this portion of RCW 90.44.050 will be
hereafter referred to as the general rule.
This section of the code does, however, have an exception and two
provisos that are at the core of this appeal.
The exception will hereafter be referred to as the exemption and the
provisos will be referred to as the first proviso and the second proviso.
The exemption in
RCW 90.44.050 reads as follows:
EXCEPT, HOWEVER, That any withdrawal of public
ground waters for stock-watering purposes, or for the watering of a lawn or of
a non-commercial 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...
This exemption is followed
by two provisos. Because each of the
provisos starts with the words, “Provided, however” and “provided, further”
these phrases limit the exemption itself. The first proviso states:
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.
(Emphasis added).
The second proviso, which
was added in 1947, after the exemption and the first proviso, states:
PROVIDED, FURTHER, That at the option of the party
making the withdrawals of ground waters of the state not exceeding five
thousand gallons per day, application …may be filed and permits and
certificates obtained in the same manner and under the same requirements as is
in this chapter provided in the case of withdrawals in excess of five thousand
gallons a day. (Emphasis added).
DeVries, in their summary
judgment motion, asks the Board to interpret RCW 90.44.050 literally, based on
a straight grammatical reading of the exemption. DeVries also asks the Board to narrowly construe the provisos,
especially the second proviso to preserve the intent of the exemption. In doing so, DeVries asks the Board to find
that the stock-watering exemption is unlimited in quantity of water withdrawn
or alternatively that a small stock-watering exemption exists, but that “small”
is relative to other agricultural uses, such as irrigation, not to the other
exempt purposes.
Ecology, in its summary
judgment motion, asks the Board to find the statute ambiguous and thus to look
beyond the narrow reading of the exemption to effectuate the general permitting
purposes of the groundwater code. Specifically, Ecology asks the Board to broadly construe the
provisos to advance the general rule.
In doing so, Ecology asks the Board to find that the stock watering
exemption is limited to 5,000 gallons per day or alternatively that the stock
watering exemption is a small withdrawal and that “small” be compared to the
other small withdrawals.
Before addressing the role
of the Board in statutory construction, it is important to summarize some of
the relevant stipulated facts in this appeal.
DeVries purchased four
adjoining parcels of land in Yakima County.
There are four certificated water rights for the properties and one
uncertificated well. DeVries is
converting the property from irrigated agriculture into a dairy and has applied
to change the certificated water rights from irrigation to use in the
Dairy. In May 2001 DeVries opened the
new dairy. As of July 2001, the dairy
had 2,261 dairy cows. The herd size is
expected to reach 4,400 cows if fully permitted by the county.
The dairy currently uses
water from one of the five wells. This
well, known as the east well, supplies water for the cows to drink, water for
cleaning milk equipment, and water to clean out the dairy barn. The well is
also plumbed to supply water to the cow misters (which cool off the cows during
hot weather). The well also provides
some, but not all of the water for the irrigation ponds. Water from this well is also used for human
consumption and toilets for the 23-30 employees of the dairy. The well also supplies water used in a
non-consumptive capacity in the milk-cooling machine. Water has also been used from this well to control dust during
land grading and construction, and will continue to be used to control dust.
As of July 31, 2001, it is
estimated the herd consumed between 39,000 and 56,000 gallons of water per
day. At full build-out, it is estimated
the herd will consume approximately 110,000 gallons per day. In addition, it is estimated that the amount
used by employees in the milk barn and for washing the milk equipment and barn
will be less than 5,000 gallons per day.
The misting system, as currently constructed, is also estimated to use
less than 5,000 gallons per day when in use during hot weather. The quantity of water used for dust control
to meet air quality requirements is unquantified, although described as the
“minimum” necessary.
Although not essential to
this appeal, the DeVries have certificated water rights for irrigation purposes
which are currently the subject of applications for change pending before the
Yakima County Water Conservancy Board and Ecology. If those change applications are granted, adequate water would be
available for the dairy and associated purposes. Until those change applications are approved, DeVries has been
relying on the exemption in RCW 90.44.050 to justify their withdrawal of
groundwater for the dairy.
Legislative
drafting is not a perfect art. The applicable rules of statutory
construction were collected in In re Kent, 1 Wn. App.
737, 739 (1969): “(1) the power conferred is to be strictly
construed; such power must be delegated in express terms or exist by clear
implication; (2) the words of the statute must be understood in their usual and
ordinary sense in the absence of statutory definition; (3) they must be read in
context; (4) they must be construed to make the statute purposeful and
meaningful; (5) they must be construed to give effect to all the language used;
(6) they must be construed to give effect to each word if possible; (7) they
must be construed so that each part is given effect with every other part or
section; and (8) the words should not be read in isolation.”
When a statute is unambiguous, it is not necessary for the court to construe it. However, if the statute is ambiguous, the courts must construe the statute so as to effectuate the legislative intent determined within the context of the entire statute. A literal reading is to be avoided if it would result in unlikely, absurd or strained consequences. State v. Elgin, 118 Wn.2d 551, 555 (1992). See also Whatcom Co. v. Bellingham, 538 Wn.2d 537 (1996). The purpose of a statute should prevail over express but inept wording. Id. The meaning of a particular word or phrase in a statute "is not gleaned from that word alone, because our purpose is to ascertain legislative intent of the statute as a whole." State v. Krall, 125 Wn.2d 146, 148(1994). An ambiguity exists if the statute is subject to more than one reasonable interpretation. Marriage of Kovacs, 121 Wn.2d 795 (1993). Where a statute is within the agency’s special expertise, its interpretation is accorded great weight, provided the statute is ambiguous. Postema v. PCHB, 142 Wn.2d 68, 77 (2000). The spirit and intent of the law should prevail over the letter of the law. Detention of A.S., 138 Wn.2d 898, 911 (1999).
In addition, when the statute
being interpreted is an exemption to a general rule, as is the case here, the
accepted rule of statutory construction is to construe such exemption narrowly,
so as to give maximum effect to the policy underlying the general rule. See e.g. Yakima v. Int'l Ass'n of Fire
Fighters, AFL-CIO, Local 469, Yakima Fire Fighters Ass'n, 117 Wn.2d 655
(1991); Converse v. Lottery Commission, 56Wn.App. 431, 434 (1989). In 1997, the Office of the Attorney General
reviewed the portion of the exemption in RCW 90.44.050 for "single or
group domestic uses in an amount not exceeding five thousand gallons a
day," and concluded that it should be narrowly construed because “if the
exemption is read broadly, a significant amount of water might be withdrawn
"outside" the regulated water system, undercutting the central
purpose for enacting the water Code”. AGO
1997 No. 6.
The parties themselves have
offered countervailing interpretations of the stockwatering exemption, all of
which are reasonable: one interpretation is that the exemption is unlimited as
to quantity; one is that the exemption is limited to 5,000 gallons per day;
and, one is that the exemption is limited to a small withdrawal. Because the exemption and the groundwater
code lead to contradictory inferences, the Board will resort to the governing
principles of statutory interpretation to construe the legislative intent.
In construing an ambiguous statute, the Board can look to legislative history, to the entirety of the statute, to the entirety of the legislation enacted, to the entirety of the groundwater code, and to the interpretation of the administrative agency. Here, the Board is without benefit of legislative history to shed light on legislative intent. Legislative history ordinarily consists of committee reports, testimony by committee chairs, or even testimony by legislators who sponsored or supported the law. Legislative history does not include contemporaneous reports of agencies or subsequent discussions of the alleged intent of the legislature. Without benefit of legislative history, the Board looks to ascertain legislative intent from the language of the statute, from the entirety of the legislative enactment, and from other provisions of the water code. The Board also gives great weight to the interpretation of Ecology and to the various courts that have implemented the groundwater code through water adjudications.
Exemptions to statutory
provisions are narrowly construed in order to give full effect to the
legislative intent underlying the general rule. For example, in a recent water case, the Supreme Court narrowly
construed the exceptions to the relinquishment statute so as to give maximum
effect to the purposes of the general relinquishment rule. Here, the general rule for which the
exemption is provided is that all new withdrawals of groundwater must have a
permit issued by the department. This
is necessary to provide a complete system of
regulation for the distribution of the waters of the state. RCW 90.44.020. See also, State v. Lawrence, 165 Wash. 508, 510, 6 P.2d 363
(1931); and RCW 90.03.005. The fundamental purposes of
the permit system are to document and quantify existing water rights, to ensure
water is available before a new appropriation is approved, to protect existing
water rights from impairment, and to protect the public interest. All
appropriations and beneficial uses of groundwater require a permit from the
Department of Ecology, with limited exemptions.
The rules of statutory
construction require a court to analyze all of the language of a statute to
discern its meaning. See, e.g.
C.J.C. v. Corporation of Catholic Bishop of Yakima, 138 Wn.2d 699
(1999). Similarly, the courts have held
that the principle of statutory construction that the express mention of one
term implies exclusion of similar terms not mentioned is not appropriate to
apply where it would defeat otherwise expressed legislative intent, as for
example, may be found in reading the entire statute. In re Estate of Kerr, 134 Wn.2d 328 (1998).
Here, the two provisos
modify the exemption. First, by
describing the list of exemptions as “small withdrawals” and secondly, by
reiterating the 5,000 gallon per day limit without reference to a specific
use. Further, the legislature has
occasionally described the uses under the exemption as “minimal uses.” RCW
90.14.051. The use of the terms “small”
and “minimal” supports the inference that the legislature understood that a
withdrawal for any of the four purposes would in fact be limited, for without a
limit is would be impossible to say the withdrawal would was in fact “small” or
“minimal.” Further, the second proviso
suggests a numerical limit defining the concept of “small” by reiterating the
5,000 gallon per day limitation with respect to withdrawals for all
purposes. It is significant that this
second proviso is not limited to withdrawals for any specific purpose, such as stockwatering,
lawn and non-commercial gardens, domestic, and industrial. Rather it applies to all four purposes. Thus, the legislature intended that the
5,000 gallon per day limit would apply to all the exempt uses. Not only that, but the legislature, in
adopting RCW 90.44.030[1],
stated its intent that the exemption itself, not just any one exempted
withdrawal, will have only a de minimis or insignificant effect on other water
rights.
The
small withdrawal exemption was enacted to save both the state and the small
appropriators the trouble and expense involved in the permitting process since
these small
withdrawals
were viewed as unlikely to have a significant impact on the water system or to
affect the outcome of disputes. Lawrence,
supra. The exemption in the
groundwater code recognizes that the benefits of a system for tracking de
minimis water users might be outweighed by the cost to the state and to the
users of processing the paper work.
This may not always be the case, given the population growth in this
state.
To read this section
otherwise would result in an unlimited, and uncontrollable, potential for
withdrawal of groundwater. This would
not be consistent with other provisions of the groundwater code. This could have a potentially devastating
effect on the ability of the state to protect the senior water right holders or
to grant future water rights. Water is
not an unlimited resource, especially in eastern Washington. The legislature recognized this early in the
20th century by adopting a statutory system that protects senior
users, allows for a systematic process for issuing new rights, and more
importantly, manages the information about all water rights through a system of
claim registration (pre-code rights) and permit applications. All of the objectives of the groundwater
code would be undermined if the stockwatering exemption is for an unlimited
quantity.
This interpretation limiting
the groundwater exemption is consistent with previous rulings of this Board,
which has characterized the exemption as being limited to 5,000 gallons per day
for all uses. See, e.g. Cheney v.
Ecology, PCHB 96-186 (1997); Fleming v. Ecology, PCHB 94-7 (1994); Darrell
Green v. Ecology, order denying reconsideration, PCHB Nos. 91-139, 91-141,
and 91-149 (1993). This interpretation is also consistent with dicta in two
recent Supreme Court cases. In Postema
v. Pollution Control Hearings Board,
142 Wn.2d 68, 89 (2000), the court stated that “RCW 90.44.050 allows domestic and
stockwatering uses of up to 5,000 gallons without a permit.” The court also characterized the exemption
as a “de minimis impact.” In Hillis
v. Department of Ecology, 131 Wn.2d 373, 378-79 (1997), the court stated
that a “water right permit is not required for
withdrawal of public water in an amount not exceeding 5,000 gallons per day for
single or group domestic uses or other specific purposes.”
For
these reasons, the Board grants summary judgment to Ecology on this issue.
2.
Are uses of water for all separate purposes that are exempt under RCW
90.44.050 limited to a combined total amount of 5,000 gpd or does each purpose
have its own maximum quantity (if there is a maximum quantity for the purpose)
that does not count toward the quantity allowed for another purpose?
As described above, RCW 90.44.050
allows a limited exemption from the permit requirement for specified uses. DeVries asks the Board to find that each
listed use has a separate limit, whereas Ecology asks the Board to find a
collective limit on all exempt withdrawals.
Again,
the Board turns to the entirety of the statute to construe this language. The statute’s use of the word “small” to
describe the withdrawal in the first proviso, as well as the term “minimal
uses” in RCW 90.14.051, necessitates against expanding the amount of water
exempt from the permitting requirement.
Interpreting the 5,000 gallon per day limit to apply to each separate
withdrawal for a different purpose could multiply the exemption by four (the
number of listed exempt purposes).
Under this view, each party who owns land could be allowed up to 20,000
gallons per day if they had the four different, exempt purposes
(stock-watering, lawn or non-commercial garden, domestic and industrial.)
Again,
in construing a statutory exemption a court must narrowly construe the
exemption in a manner that gives maximum effect to the objectives of the
general rule from which the exemption is made.
Unlike permitted withdrawals, exempt withdrawals are neither documented
nor quantified (until adjudicated).
Further, they are not subject to agency or public review prior to
withdrawal and thus have a potential, either individually or cumulatively, to
impact existing rights or the public interest.
Clearly,
the legislature intended that any exempt withdrawal be “small” so that any
undocumented withdrawal’s effect on other water rights and the source itself
would be minimal.
This
interpretation is consistent with prior rulings of this Board and dicta from
the Supreme Court. “A water right
permit is not required for withdrawal of public water in an amount not
exceeding 5,000 gallons per day for single or group domestic uses or other
specific purposes.” Hillis v.
Department of Ecology, 131 Wn.2d 373, 378-379 (1997). In Postema v. Pollution Control Hearings
Board, 142 Wn.2d 68, 89 (2000), the court stated the “RCW 90.44.050
allows domestic and stockwatering uses up to 5,000 gallons without a
permit.” Additionally, adjudication
courts have uniformly limited all exempt uses to a total of 5,000 gallons per
day. This is most likely a result of
the positions taken by Ecology, or its predecessors, in those
adjudications. Because the statute is
ambiguous, as noted under the first issue, and because the statute is within
the agency’s special expertise, the interpretation of Ecology is accorded great
weight.
Thus,
the 5,000 gallon limit is a total limit on an exempt withdrawal, regardless of
the purpose or purposes to which the water will be put to beneficial use.
For these reasons, the Board
grants summary judgment to Ecology on this issue.
3.
Does the stockwatering purpose of use that is exempt from permitting
requirements pursuant to RCW 90.44.050 include the use of water for consumption
by dairy cows in a large commercial dairy operation?
The statute does not define
stockwatering. In the absence of a
specific statutory definition, we will give words their ordinary meaning, which
we may determine by referring to a dictionary definition. State v. Standifer, 110 Wn.2d 90,
92 (1988). When faced with determining
"the meaning of words used but not defined within a statute," we will
"give careful consideration to the subject matter involved, the context in
which the words are used, and the purpose of the statute." City of
Tacoma, 108 Wn.2d at
693 (citing State v. Stockton, 97 Wn.2d 528,
533 (1982)).
In construing this statute,
“stockwatering purposes” will be given its usual meaning. Stockwatering is not a term found in the 2nd
College edition of Webster’s new world dictionary. “Stock” is short for livestock.
“Livestock” is defined as “domestic animals kept for use on a farm or
raised for sale or profit.” Thus, the
term is not, as Ecology argues, limited only to open range livestock.
The statute does not
differentiate between the size of the livestock operation or the number of head
of livestock that can be watered, only the size of the withdrawal. The stockwatering language does not
differentiate between commercial and non-commercial, as the exemption for
“non-commercial garden” does. Thus,
this exemption applies equally to stockwatering on the family farm and
stockwatering at a commercial farming operation. It applies equally to livestock that are kept fenced on a farm
and those that are allowed to graze freely on the open range. The exempt withdrawal is, however, limited
to 5,000 gallons per day.
For these reasons, the Board grants summary judgment to DeVries
on this issue.
4.
Does the stockwatering purpose of use that is exempt from permitting
requirements under RCW 90.44.050 include uses of water by a dairy for washing
machinery, cleaning, dust suppression, and/or dairy-related uses that do not
involve the consumption of water by stock?
The statute uses the term
“stock watering purposes.” The term
“purposes” is plural, implying that there is more than one stockwatering
purpose. A single purpose might lead to
the conclusion that only water for drinking was envisioned. Since more than one purpose is contemplated,
water use for stockwatering purposes covers all reasonable uses of water
normally associated with the sound husbandry of livestock. This includes, but is not limited to,
drinking, feeding, cleaning their stalls, washing them, washing the equipment
used to feed or milk them, controlling dust around them and cooling them. But again, the total withdrawal is
constrained by the 5,000 gallons per day limitation.
For these reasons, the Board grants summary judgment to DeVries
on this issue.
5.
Does the industrial purpose of use that is exempt from permitting
requirements under RCW 90.44.050 include the use of water by a dairy for
washing machinery, cleaning, dust suppression, and/or other dairy related uses
that do not involve the consumption of water by stock?
The term “industrial” is not
defined in the statute. When
interpreting a statute, the court must follow the general rules of statutory
construction. As in this instance,
where the statute is ambiguous, the role of the Board is to construe the
statute to effectuate the legislative intent determined in the context of the
entire statute. The meaning of a
particular phrase or word is not gleaned from the word alone, but the purpose
is to determine the legislative intent of the statute as a whole. State v.
Krall, 125 Wn.2d 146, 148 (1994). A
literal reading is to be avoided if it would result in unlikely, absurd or
strained consequences. State v.
Elgin, 118 Wn.2d 551 (1992). The
Board in Joo Il Kim v. Ecology[2],
PCHB 98-213 (1999), recently held that the term “industrial” must be narrowly
defined to be limited to “manufacturing” as opposed to “commercial” or
“agricultural.” In Kim the Board
stated:
Since the term “industrial” is not defined in the
statute, we turn to the dictionary for guidance. Webster’s defines industrial as “having the nature of or
characterized by industry or industries.”
“Industry” in the context used here is defined as “any branch of trade,
business, production or manufacture: as, the paper industry” and also,
“manufacturing production enterprises” as distinguished from agriculture.
The Board further stated that:
The exemption for “Industrial purposes” must be
construed narrowly so as to give maximum effect to the underlying policy to
which the exemption applies.
Applying this definition of
“industrial” in this appeal leads to the conclusion that the dairy uses of
water are best classified as “agricultural” rather than “industrial.” A working dairy produces milk, but does not
manufacture milk. The common sense
understanding of “manufacture" is also reflected in the definition in RCW
82.04.120, which specifically excludes “producing of agricultural products.” Milk is an agricultural product. Thus, the use of water for washing the milk
barn and milking equipment, suppressing dust, misting dairy cows, and providing
for dairy worker sanitation is water used in an agricultural process as opposed
to an industrial process. If the term
“industrial” were interpreted to include all agricultural uses, the scope of
the exemption would be extended to such a degree as to undermine the purposes
of the groundwater code. Instead, the
exemption should be interpreted narrowly.
For these reasons, the Board grants summary judgment to Ecology
on this issue.
6.
Does appellants’ withdrawal of groundwater exceed the limitations of
the exemption for permitting under RCW 90.44.050?
For the reasons cited above
and the facts stipulated by the parties, the withdrawal by the DeVries exceeds
the 5,000 gallon per day limitation and thus does not qualify for an exemption
from the permitting requirements. The
DeVries must either limit their usage to 5,000 gallons per day or obtain a permit
authorizing the withdrawal of public groundwaters for the use on their dairy.
For these
reasons, the Board grants summary judgment to Ecology on this issue.
ORDER
IT IS ORDERED that summary judgment be granted on the issues as noted
above and that the compliance order (No. DE 01 WRCT-2868) issued by
Ecology to DeVries be upheld for the
reasons stated above and that the appeal be DISMISSED.
DONE this 27th day of September 2001.
KALEEN COTTINGHAM, Presiding
ROBERT V. JENSEN, Member
JAMES A. TUPPER, JR., Member