Il Kim v. Pollution Control Hearings Board

115 Wash. App. 157
CourtCourt of Appeals of Washington
DecidedJanuary 24, 2003
DocketNo. 27804-9-II
StatusPublished
Cited by4 cases

This text of 115 Wash. App. 157 (Il Kim v. Pollution Control Hearings Board) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Il Kim v. Pollution Control Hearings Board, 115 Wash. App. 157 (Wash. Ct. App. 2003).

Opinion

Morgan, J. —

Joo Il Kim and Keum Ja Kim appeal a ruling that they must have a permit to use well water for their commercial nursery. Based on RCW 90.44.050, we reverse.

Since 1990, the Earns have owned real property on N.W. Central Valley Road in Poulsbo. The property is the site of their home and their business, a commercial nursery called Central Valley Greenhouse. The nursery’s components are a greenhouse, a display area of less than a half acre, and parking spaces for eight cars.

The property is served by a well that was drilled in about 1965. The Kims take groundwater from the well for both their residence and the nursery. They use between 100 and 300 gallons per day “to directly water (via hand watering [159]*159and watering wand) the plants that they raise and offer for sale to the general public.”1 They do not have a permit to take water from the well.

On August 28, 1998, the Department of Ecology (DOE) ordered the Kims to stop using well water for their commercial nursery unless they applied for and obtained a permit. DOE did not order them to stop using well water for their residence.

The Kims appealed DOE’s order to the Pollution Control Hearings Board (PCHB). The PCHB affirmed, reasoning in part that it should interpret RCW 90.44.050 not in light of the intent of the 1945 legislature, but rather in light of “our current scientific understanding of ground and surface water continuity, the federal mandates to protect endangered salmon, and the increasing demand for water to serve our growing population and economy.”2

The Kims appealed from the PCHB to the superior court, but that court also affirmed. The Kims then appealed to this court, which reviews the decision of the PCHB.3

RCW 90.44.050 is the governing statute. It was enacted in 1945. At all times since then, it has provided essentially as follows:

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: EXCEPT, HOWEVER, That any withdrawal of public ground waters 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 [160]*160five 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: 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:... .[4]

The overall scheme of this statute is to require a permit except for certain “small withdrawals.” The 1945 legislature defined a “small withdrawal” as (1) any amount of water for livestock, (2) any amount of water for a lawn or for a noncommercial garden of a half acre or less, (3) not more than 5,000 gallons per day for domestic use, and (4) not more than 5,000 gallons per day “for an industrial purpose.”

The parties agree that the first three types of withdrawal do not apply to the Kims’ use of well water for their commercial nursery. Accordingly, the question for us is whether, when the Kims take well water for their commercial nursery, they are taking such water “for an industrial purpose.”

In 1995, DOE’s Shorelines and Water Resources Program commented on this “industrial” type of withdrawal in a document that it addressed “to all interested parties.” It stated in part:

Following is an outline of Ecology’s current understanding regarding the ground water exemption specified in Chapter 90.44 RCW. . . . This letter is provided to help reduce confusion and contribute to a common understanding of when and where the ground water exemption does apply.
. .. [T]he entire issue of the ground water exemption is very controversial and is likely to be the subject of legislative action this upcoming session. A strong possibility exists that one or more portions of the current statute will be changed. . . .
[161]*161Under Washington’s ground water code, small users of ground water have historically been exempted from the water right permitting process. . . . This exemption ... is specified in RCW 90.44.050____
The following is Ecology’s interpretation of the various portions of the exemption language.
A. “ . . . any withdrawal of public ground waters for stock-watering purposes ....”
This provision applies to water farm animals (cows, horses, etc.) drink in the course of grazing or otherwise being raised under natural conditions. Commercial animal-rearing operations such as feedlots and kennels are considered industrial uses of water. . . .
D.“ ... for an industrial purpose in an amount not exceeding five thousand gallons a day . . . .”
Ecology interprets “industrial” in the broadest possible sense, to include “commercial” and any other general industry. Under this interpretation, a commercial dairy using less than 5,000 [gallons per day] would be exempt.
Ecology will revise this letter in accordance with any changes made by the legislature. If you have any additional questions, please contact Ecology’s . . . regional office. . . ,[5]

Since 1995, the legislature has not amended RCW 90.44.050, despite a number of proposals that it do so.6 The Department of Ecology, however, has altered its reading of RCW 90.44.050. It now asserts (1) that “the word ‘industry’ [162]*162excludes agriculture”;7 (2) that “to interpret the ‘industrial purpose’ exemption to apply to irrigation would render meaningless the exemption for noncommercial gardens less than one half acre in size”;8 and (3) that to define “industrial purposes to include horticulture or agriculture would increase the types of uses to which the exemption applies, thus undermining the general rule that withdrawals must be permitted.”9

We reject DOE’s first assertion. At least 24 Washington statutes,10 five Washington regulations,11

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Related

United States v. Bohn
622 F.3d 1129 (Ninth Circuit, 2010)
Ago
Washington Attorney General Reports, 2009
Kim v. Pollution Control Hearing Bd.
61 P.3d 1211 (Court of Appeals of Washington, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
115 Wash. App. 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/il-kim-v-pollution-control-hearings-board-washctapp-2003.