(concurring in dissent) — I agree with the majority that the “plain language” of RCW 90.44.050 should control the disposition of this case, and I agree with the dissent that it does.
This statute plainly requires a permit prior to the construction of a well and withdrawal of public groundwaters
EXCEPT, HOWEVER, That any withdrawal of public ground waters . . . for single or group domestic uses in an amount not *22exceeding five thousand gallons a day... is and shall be exempt from the provisions of this section ....
RCW 90.44.050.
From a facial reading of the text it seems apparent that drilling a well to withdraw less than five thousand gpd for domestic uses, whether single or group domestic uses, is categorically exempt.
Notwithstanding, the majority finds it necessary to turn this simple exemption statute on its head through pages of extralegal contortions to conclude:
The developer of a subdivision is, necessarily, planning for adequate water for group uses, rather than a single use, and accordingly is entitled to only one 5,000 gpd exemption for the project.
Majority at 12. For this statement to make sense the majority must be assuming the statute limits exempt wells to one per customer. But the statute doesn’t say that.
Not that it matters, but by the majority’s logic a developer could drill only one exempt well to service 16 lots whereas after sale of these lots to individual purchasers, each of the 16 could drill their own wells. What reason could the legislature have in mind to make such a distinction? I can think of none. Nor can I find such a distinction in the clear language at issue.
The majority’s rationale for a distinction between single homeowners and developers (who usually make single home acquisition possible) is buried in footnote number 4 on page 14:
[I]t does make a difference whether the exemption from the permitting requirements is sought by an individual homeowner or a developer. Aside from the statutory distinctions (the exemption is from permitting, which otherwise applies to the party who seeks to construct the well, and expressly applies prior to commencement of any construction of the well—thus applying to the developer), use of the exemption by developers will predictably and greatly expand unpermitted water use in this state. Individual, single family residential use *23of the exemption (or group uses not exceeding 5,000 gpd in total) is simply not comparable to what can occur if the exemption is rewritten to allow for multiple wells in large developments.
In summary, the majority prefers fewer exempt wells to more exempt wells; therefore the majority rewrites the statute to disallow construction of exempt wells by developers.
But if it is true “developers will predictably and greatly expand unpermitted water use in this state,” it is so only because developers may find it expedient to do so under the exception which the legislature has created which allows exactly that. Apparently the majority would prefer to eliminate or narrow statutory exemptions so as to prevent citizens (who happen to be engaged in development of land) from withdrawing groundwater for beneficial domestic purposes—because that will allow people to develop their land. The inevitable result of the majority’s public policy (which supplants the legislature’s public policy) is to stifle economically efficient development, create an artificial scarcity of building lots, and “dry up” affordable housing for lack of available water and/or making it more costly to acquire. Whatever benefits there may be to the majority’s public policy, and my imagination is too challenged to conceive of any, it is a matter for the legislature, not our majority, to enact it. And it hasn’t.
Accordingly I would affirm the learned trial court: Wells withdrawing less than 5,000 gpd for domestic uses are categorically exempt, because the legislature says they are.
I join the dissent.