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Judge Rules Against NMFS

by Mike Lee, Herald staff writer
Tri-City Herald, February 1, 2002

Don't base Columbia River water rights decisions on the National Marine Fisheries Service's biological opinion, Benton County Superior Court Judge Dennis Yule told the state Ecology Department on Thursday.

It was a substantial victory for the Columbia-Snake River Irrigators Association and the Kennewick Hospital District, which filed a lawsuit claiming the state had illegally adopted the federal standard without proper public review.

Yule's decision rested on legal issues -- the state's de facto adoption of the standard -- not the merits of the federal opinion. However, irrigators are expected to try to use the ruling to dismantle NMFS' river operations plan, which basically prohibits new uses of Columbia River water in an attempt to protect salmon and steelhead.

That federal mandate "essentially puts a death sentence on any development east of the Cascades," said James Buchal, Portland attorney for the irrigators.

The ruling threw the state Ecology Department into a limbo land of uncertainty about how to proceed.

In addition to restricting use of the biological opinion, Yule questioned the feasibility of the state's case-by-case consultation approach to water rights, given that NMFS' blanket denials of water make it hard for individual assessment.

"No matter how assiduously the state may seek case-by-case consultation, it appears to me that the department would not receive it," Yule said.

The judge left open the question of whether his ruling applies to all Columbia River water rights applications before the state.

"We are going to have to go back and discuss with the Ecology Department what the next step will be," said Assistant Attorney General Barbara Markham, raising the possibility of appeal.

Brian Iller, attorney for the irrigators, said he intends to file a motion requiring the state to issue the nine applications in question as soon as possible.

"They are free to issue the permits," he said. "But they cannot apply the biological (water) flow targets."

And Darryll Olsen, principal consultant for the association, immediately demanded an audience with Gov. Gary Locke.

"It's really up to Gov. Locke ... to settle this issue on the Columbia," Olsen said. "The judge said you are not going to perpetrate this rule on Eastern Washington. ... No more fooling around."

Thursday's hearing was a continuation of one that started Jan. 10 in which irrigators set out to prove that Ecology Department officials had adopted federal flow targets as the basis for water decisions on the Columbia River.

Draft permits said water users could not make withdrawals during July and August -- the peak of irrigation season -- making their permits substantially less valuable.

Bob Barwin, a top water manager for the Ecology Department in Yakima, said he tried to meet federal demands while giving water seekers some of what they wanted.

The combined permits under scrutiny, Barwin testified, could kill as many as 18 fish a year. That number, however, was derived from a study done by one of the applicants -- not the state, which did not do any quantitative analysis of the fishery impacts.

Markham defended the lack of study, saying NMFS has the best available science. "Do you see any point in doing a quantitative analysis when the river already is overdrafted?" she asked. "In each case, the evidence is that there is already not enough water for fish."

And she tried to convince Yule again not to order an injunction because the Ecology Department hasn't yet issued final rulings and therefore could not have created a "directive."

"At this point, all it is is a tentative factual determination," she said. "It would be against the public interest to grant water right requests with no flow conditions whatsoever."

Iller and Buchal, however, convinced Yule that top agency officials did not give the permits the individual analysis required by the Legislature.

"The people of Washington did not say, 'We crown Mr. Barwin the king to determine what flows are going to be,' " Buchal said. "What we find especially appalling is that they didn't really have any evidence at all."

Yule's ruling appears to increase the stakes of Locke's Columbia River Initiative, an attempt to convene interest groups and start an independent science review to set state flow levels for the river.

Ecology Department Director Tom Fitzsimmons said he wants a science-based state program so he can defend decisions conflicting with federal demands.

That process has been opposed by the irrigators association, which fears Fitzsimmons is looking for a way to avoid issuing more water rights.

Fitzsimmons, however, told the Herald editorial board last week that he "could not imagine a future" in which irrigators and cities would be prevented from Columbia withdrawals.

"It is just unthinkable to me," he said.

Mike Lee
Judge Rules Against NMFS
Tri-City Herald, February 1, 2002

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