The Farmer & The Cowman 2012: Whose water is it, anyway?

Water rights – then and now?

The famous team of Rogers & Hammerstein, who wrote musicals during the 1930’s-1950’s, are generally less well known for environmental law commentary as much as hummable classics like “I’m Gonna Wash That Man Right Outta My Hair”.  But their musicals were innovative for the time largely because they chose stories with real political or social tension. Their first musical, Oklahoma!, actually happens within a historic environmental drama of violent tension between farmers and cattlemen in America. Largely forgotten today, skirmishes and hostilities between the two groups over fences, free range, and water rights were common across the American West up until the early 1900’s.

For better or worse, our environmental battles today generally go down in courtrooms. While this bodes poorly for future theatergoers (the glacial pace of legal proceedings is poor dramatic fare against a pitchfork and pistol showdown), a recent legal battle in Franklin County, Washington, where farmers and cattle ranchers faced off over groundwater rights shows that although the times may change, the players have not.  Further, as a freshwater scientist, this case caught my eye as a commentary on what a water rights squabble looks like nowadays – and what we might expect to see more of if climate change models for the region are borne out in the coming decades.

The players are no longer free-ranging cowboys and single acre farmers. In 2007, Easterday Ranches, applied for permits to build a 30,000 head industrial feedlot in one of the driest counties in Washington State.  Neighboring farmers, who ultimately banded together legally as Five Corners Family Farms, objected not on grounds of pollution from the feedlot, but the potential depletion of their groundwater supplies. In the sideways fashion typical of lawsuits, in 2009 Five Corners Family Farmers sued not Easterday Ranches but the State of Washington for their interpretation of the 1945 law which allows unlimited groundwater supplies for livestock production without requiring regulatory review.

If you go to the Washington State Dept of Ecology website, this interpretation and exemption is stated in exceptionally plain English: “The only exceptions to the [water] permit requirement is for withdrawals of groundwater for: (1) Providing water for livestock (no gallon per day limit)

The lawsuit forced the State to answer the question, “Even a million gallons a day?”  The feedlot of 30,000 cows is expected to draw that much from the Grande Ronde Aquifer –reportedly already showing long-term declines and lowered rates of recharge.

Between June 2009 and January 2012, the case worked its way to the State Supreme Court, who upheld the original decision of the Franklin County Court – that according to existing law stockwatering is exempt from permitting or a 5,000 gallon per day limit.  An excerpt from the decision, also refreshingly clear, reads: “The stockwatering exemption contains no qualifying phrase. Accordingly, under a plain reading of RCW 90.44.050, groundwater withdrawn without a permit for stock-watering purposes is not limited to 5,000 gallons per day.”

So now the onus is on the legislature to modify the statute. But legislative gossip suggests it isn’t a priority– the state wants the ag business, the jobs, and the tax revenue. Of course, the danger that worries farmers isn’t that one ranch is going to drain one aquifer, but the precedent for more industrial feedlots to take advantage of laissez-faire water management in the state.

Another day, another environmental battle lost in a tortured and unsatisfying interpretation of an outdated law? In my mind, two things kept this story from that fate.  First was the intense media coverage that this story, about farmers and ranchers in a tiny county in the far West, generated.  More than 75 news articles – including a 2009 feature in the New York Times –appeared on outlets from blogs to evening news. Concern about freshwater, and how water gets portioned out, are hitting a nerve with the public and the media.

Second, is that while it might be a hard lesson, I think this showdown offers guidance for scientists and conservationists.  Despite the media attention, despite an outcome that assails common sense (C’mon..unlimited water for a single industry?), and despite almost zero discussion of environmental implications of the decision, at the end of the day it was the statute that determined the policy.  And statutes can be changed – but not unless science dives into the convoluted hallways of politics, economics, and environmental law. The Farmer & The Cowman 2012 probably will never make a great musical, but does offer a roadmap for scientists and conservationists that want to help make sure environmental resources are managed justly and for long-term sustainability.

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About Lauren Kuehne

Fish, freshwater, invasive critters
This entry was posted in environmental policy, society and the environment and tagged , , , . Bookmark the permalink.

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