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Irrigators Press State Over Water Requests by Mike Lee, Herald staff writer Tri-City Herald, September 2, 2000

Irrigators are preparing to provoke a fight over fish water.

The Columbia-Snake River Irrigators Association is trying to force Washington state to stand up to federal demands for "no net loss" of water from the Columbia River.

The association has warned the Ecology Department it will sue the agency if it doesn't immediately start processing irrigation water withdrawal requests from the John Day and McNary dam pools.

"The state is simply going to have to be forced into issuing permits," said Darryll Olsen, a Kennewick irrigation consultant who helped write an Aug. 23 warning letter to the state.

Lawyers for irrigators have said the National Marine Fisheries Service's no-net-loss policy "lacks legal merit or authority." The policy essentially says no more water can be taken from the Columbia River unless "replacement" water is put back into the system somewhere else.

Development advocates view the policy as a substantial impediment, but environmental groups see it as an important tool to prevent withdrawing so much water from the Columbia that fish runs are harmed.

Earlier this summer, a water application by Kennewick, Pasco, Richland and West Richland threatened to force the state to choose whether it would abide by the federal dictum. The state, however, said a legal mistake three years ago invalidated the four cities' water request -- a move widely seen in the Tri-Cities as an attempt to evade taking on the powerful federal fisheries service.

Tom Fitzsimmons, Ecology Department director, said at a July water conference in Pasco that his agency doesn't necessarily believe in the science used to support no net loss but won't take NMFS to court.

When states have taken on federal endangered species protections, Fitzsimmons said, "The states have walked away ... with their authority somewhat diminished."

Now, irrigators will try to force the state to defend its authority to manage its water, a legal battle that would help define limits of the far-reaching ESA.

"This policy ... effectively usurps the power of the state to manage water resources within its jurisdiction," said the irrigators association board in a recent memo.

In the same action, the association is also trying to get to the state to process more quickly the backlog of water requests on the John Day and McNary pools.

Association lawyers want access to a substantial water "reserve" on that section of river. In 1980, according to the association, the state set aside 1.3 million acre-feet of river water yearly to irrigate 330,000 acres by 2020. The reservation also includes 26,000 acre-feet yearly for municipal use.

An acre-foot is enough water to cover an acre 12 inches deep.

Given the explicit purpose of the reserve, the state should start granting water, irrigators argue. And, they say, the request provides the Department of Ecology with "the perfect opportunity to reject the unscientific NMFS 'no-net loss' water policy ... (that) is plainly in conflict with state water law."