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Irrigator Group Sues Ecology by Mike Lee, Herald staff writer Tri-City Herald, December 17, 2001

After years of pushing the state to process water right applications on the Columbia River, the Columbia-Snake River Irrigators Association filed a lawsuit Friday to do just the opposite.

In a strange twist of law, the irrigators group now is trying to prevent the state Department of Ecology from issuing new Columbia River water rights, which the agency aimed to do before the end of the year under an earlier settlement with the irrigators.

A state attorney has agreed not to issue nearly completed water documents until after a hearing in Benton County Superior Court, which is expected in early January.

The irrigators' counter-intuitive move is an attempt to prevent what they view as badly flawed precedent-setting policy by the Department of Ecology -- a policy that could effectively end the release of traditional water rights on the river. The agency was poised to make new water rights conditional on the river meeting highly controversial flow targets set by the National Marine Fisheries Service to protect salmon and steelhead.

But such a condition would prevent withdrawals each summer, a precedent that irrigators are determined to challenge at every turn. "They were conditioned in such a way that they are nonrights," said Tom Mackay, president of the irrigators association.

After three months of attempting to convince the state not to condition the rights, irrigators said negotiations failed and filed court papers alleging that the Ecology Department has illegally adopted federal flow targets as state law. State law prescribes an elaborate public process for agencies that want to change their rules of operation.

"They have in essence adopted a rule without going through the rule-making process," Mackay said.

The state plans to argue that the Ecology Department has not adopted the federal flow targets as a rule, said Joye Redfield-Wilder, agency spokeswoman.

The core question, which irrigators want answered in court, is a critical one for all of Eastern Washington: Can the federal government dictate state water rights policy?

At least until that is decided, the Ecology Department remains in a tight spot. Until Washington can set its own minimum-flow levels for salmon, state officials want to avoid being confronted by NMFS for allowing too much water to be taken from the Columbia River. NMFS has adopted a "no net loss" policy on the Columbia, meaning that any new water withdrawals are supposed to be replaced by new sources of water somewhere else in the system.

"Any decisions that might come after these are going to have conditions at least until a regional management plan would maybe change that," Redfield-Wilder said in September when the draft water right decisions were released.

That planning effort is just getting under way, which leaves water rights in an uncomfortable middle ground for just about everyone. The practical effect on those who want Columbia water is that either must obtain "replacement" water from a willing seller -- presumed to be an expensive exercise -- or agree not to use their new right in July and August when water typically is most needed in the Mid-Columbia.

Irrigators have been skeptical about the initiative process from the start and want the Legislature to set the rules. Ecology Department officials "are positioning themselves to put into place a state no net loss policy to take the place of the NMFS no net loss policy," said irrigation consultant Darryll Olsen.