The Case for Law

Abstract

There are a few cases that have interpreted the permit exemption in the Ground Water Code. These cases are discussed below. The permit exemption in RCW 90.44.050 states: "After June 6, 1945, no withdrawal of public groundwaters 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 groundwaters 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 as provided in RCW 90.44.052, 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: PROVIDED, FURTHER, That at the option of the party making withdrawals of groundwaters of the state not exceeding five thousand gallons per day, applications under this section or declarations under RCW 90.44.090 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." In Hillis v. DOE 131 Wn. 2d 373 (1997), the court held that " [w]hile the policies and procedures adopted by the [Department of] Ecology in response to cuts in the funding of the permitting program were within the statutory authority of the agency and were not arbitrary or capricious, the decisions were nonetheless subject to the rule-making process of the APA. Therefore, when Ecology sets out priorities and establishes prerequisites to those decisions, the agency should engage in rule making so the public has some input into those decisions. " Hillis more specifically dealt with agency policies regarding decision-making for surface and ground water right permits that the court felt …