Supreme Court strikes a blow against exempt wells - 
Ruling will especially hurt rural areas

by Tim Ford

Olympia, WA - 3/28/02 - The WA Supreme Court came out with another bad decision.  The vote was 5-4 and Justice Owens (from Forks) authored a dissenting opinion stating, "The decision today tolls the bell for growth and growth management in rural Washington". 

 The case is called Dept. of Ecology v. Campbell & Gwinn. The majority interprets RCW 90.44.050 to create new legislative policy that narrows the use of exempt wells.  The exempt well provision allows an owner or developer to drill a well for single or group domestic uses provided that the withdrawal of water does not exceed 5,000 gallons a day.  If you fall within the plain language of this statutory exemption, then you do not need to apply for a permit.  This is important for rural counties where extending a water system may not be economically feasible.

A developer in Yakima who had 16 lots in a development and sent notice to Ecology that it intended to drill 16 exempt wells (one for each lot).  Ecology sued under the theory that all lots in a single development should be treated as one withdrawal exceeding 5,000 gpd.  

The Superior Court judge ruled against Ecology, stating that the plain language of the law allows individual withdrawals less than 5,000 gpd to be counted as a separate withdrawals.  The case went directly to the WA Supreme Court where a narrow majority admitted that Ecology does not define withdrawal yet proceeded to give Ecology a victory based not on the plain language of the statute but upon a policy "goal of regulation to assure protection of existing (water) rights and the public interest".  Ecology never introduced any evidence or facts at trial to demonstrate an impairment of an existing water right.

This ruling is perhaps the most blatant attempt at judicial activism by the WA Supreme Court in a long time.  A slim majority has managed to create its own policy in substitution of the Legislature's.  It did so by interpreting the plain language of an unambiguous statute.  A telling quote of the majority opinion reads, "In the past, the plain meaning rule rested on theories of language and meaning, now discredited, which held that words have inherent or fixed meanings."  (In plain language, the majority believes that words don't have fixed meanings but can mean whatever you want them to mean.)  The Justices in the majority were Madson, Alexander, Smith, Ireland, and Chambers.  Justices in the minority were Owens, Bridge, Johnson, and Sanders.

Tim Ford is an attorney with the BIAW [Building Industry Association of Washington].