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Ecology Department Hit with Water Lawsuit by Mike Lee, Herald staff writer Tri-City Herald, November 1, 2000

Pasco officials and Columbia-Snake river irrigators delivered a "trick" to the Ecology Department on Halloween, announcing a lawsuit to force the state agency to process water rights more quickly and defend state water code.

The suit appears to put the state in the odd position of defending a federal regulation it doesn't necessarily believe is valid.

And it is reportedly the first direct legal challenge of the federal "no net loss" water policy, and the result could affect water users across the Northwest.

The suit names two water rights requests it argues should be processed, one by Pasco and one by Sunheaven Farms, which takes water from the John Day Pool of the Columbia River.

"These are test cases," said Darryll Olsen, adviser for the Columbia-Snake River Irrigators Association, one of the plaintiffs. "If irrigators and the city are successful, they will have preserved state water law."

Ecology Department spokeswoman Mary Getchell said the state had been trying to resolve the issues with the irrigators association and is "disappointed" with the court case.

"The management of the Columbia River is a very huge task, and tying it up in court to try to get us to process two applications is not the solution to managing the river," she said. "This lawsuit is a roadblock."

Water users charge the state with unlawfully holding up water rights requests and allowing the federal government to dictate state water laws.

"The point of the serving time was to give them a little trick or treat, to try to have a little humor in this," Olsen said of the Halloween lawsuit announcement.

But the situation is grave.

"The real and perceived inability by state citizens ... to have a water right permit application acted upon by Ecology has forced many citizens ... to limit or abandon economic development actions," says the suit, prepared by attorneys Brian Iller of Kennewick and Joel Merkel of Seattle.

They said Ecology Department slowdowns have limited economic development in the Mid-Columbia, making less money available for residents and fewer tax dollars for county governments.

The irrigators association officially announced its intent to sue the state in August and was later joined by Pasco, which has been frustrated in attempts to expand its water supply.

"This is not an isolated irrigators lawsuit," Olsen said. "You are dealing with agricultural and municipal impacts in Eastern Washington."

At the end of 1994, the Ecology Department had a backlog of about 4,800 water rights applications. Since then, the number has jumped to more than 7,000, while application processing has slowed by about 40 percent per employee, said Iller and Merkel.

"We need to have a Department of Ecology that works with us to solve water problems, not one that throws up roadblocks at every step," Iller said.

Getchell, however, contends the state is working but that it can't afford to deal with two water requests out of thousands.

"We need to look at all the other situations in the Columbia-Snake river system, not just one group's interest," she said. The agency was reviewing the suit Tuesday and not ready to respond to specific charges.

One of the main challenges is the state's response to federal water regulations. The suit alleges the Ecology Department has failed to "vigorously represent state interests and preserve the integrity of Washington's water resource laws and policies against conflicting federal rules, policies and agency actions."

Specifically, concern is about the National Marine Fisheries Service's "no net loss" policy, which essentially demands that no new water be taken from the river system unless it is replaced with water somewhere else.

The rule, Iller and Merkel contend, contradicts a state code in 1980 that set aside about 1.3 million acre feet of water from the John Day and McNary pools for farm and municipal development by 2020.

Federal officials want more water in the river system so conditions are more like they were before the Columbia Basin was developed. That's based on the philosophy that more water taken from the Columbia will harm federally protected salmon.

But irrigators say only about 6 percent of the river system is taken for farms and people -- and state officials remain unconvinced the federal program makes sense, even though the suit may force them to defend it.

"Washington does not believe NMFS has indicated the clear benefits of flow augmentation for fish recovery," said a Sept. 29 letter to federal agencies from Gov. Gary Locke's top environmental adviser.