Spokesman Review

Washington State - 3/20/02 - Okanogan County has lost a key battle with federal agencies that enforce the Endangered Species Act.

Last week's decision by U.S. District Court Judge Robert Whaley could affect any irrigator whose ditches cross federal land and compete for water with endangered fish.

The Spokane judge ruled that agencies who issue easements for the ditches can place restrictions on their use, if that is what is needed to protect endangered species.

"This issue has been coming up all across the West. It's particularly acute in Eastern Washington and (Eastern) Oregon and Idaho," said Mike Grady of the National Marine Fisheries Service.

Don Anderson, an Okanogan County attorney, said county commissioners haven't had a chance to decide whether they'll appeal the ruling.

"Obviously, they're disappointed," he said.

The county, one irrigation district and three landowners sued last June. It was the third consecutive summer of on-again, off-again irrigation at some Methow Valley homes and farms, as federal agencies shut down some ditches.

The ditches pull water from the Methow River and tributaries like Wolf Creek and the Chewuch River, which are home to endangered salmon, steelhead and bull trout.

Due to the shutdowns, some farmers lost hay harvests; some hobby farmers lost fruit trees, lawns and vegetable gardens; a private golf course went dry.

"Without the ... beneficial use of water, the economy and communities of the Methow Valley could not exist," County Commissioner David Schulz wrote in court documents.

Fish advocates note that the aging irrigation systems are inefficient, losing several gallons through seepage for every gallon delivered to a field. State and federal agencies have offered money to help modernize the systems. In many cases, those offers have been rejected by skeptical irrigators.

Environmentalist Lee Bernheisel wrote in court documents that he watched one creek dry up the first 22 years he lived in the Valley.

The summer of 2000, when irrigation was shut down, "was the first year that I have ever seen water in Wolf Creek at its confluence with the Methow River" during summer, Bernheisel wrote.

Six environmental groups intervened in the lawsuit and issued a press release Monday praising the ruling.

At issue was whether the U.S. Forest Service acted properly by placing conditions meant to protect fish on the permits it issues for ditches crossing Okanogan National Forest land. The county and irrigators argued it was unconstitutional; Whaley said it was appropriate.

Most of the ditches were dug early in the 20th century. The Forest Service placed few conditions on their use until the various fish were protected under the Endangered Species Act in the 1990s.

In recent years, the agency has said the ditches must have modern fish screens to prevent fish from being sucked from the rivers, into the canals. The ditches can be used only when the rivers and creeks from which they pull water are running full enough to meet National Marine Fisheries Service standards.

Those standards, which haven't been set for every steam, vary from one to the next. The minimum on Wolf Creek is 35 cubic feet per second. The minimum for the Chewuch is 425 cfs. By comparison, the Spokane River runs at an average of about 6,000 cfs at Post Falls Dam and sometimes drops below 100 cfs at the dam.

Irrigators contend standards in the Methow have been arbitrarily set. Three members of the Early Winters Ditch Co. testified that Grady told them to accept 35 cfs as the minimum for Early Winters Creek, or NMFS would set it at 50 cfs -- meaning the irrigation district would be shut down more often.

"I perceived Mr. Grady's statement to be a threat," district president Steve Devin wrote in a court statement. "I nevertheless refused to agree."

For Devin and three other farmers, last week's ruling is largely moot. Using state grants, they dug wells to provide water when the ditches go dry.

But, Devin said, obtaining a state Department of Ecology permit for the well was so difficult, "it's not going to work for most people."

Grady, whom one critic called "the least-liked guy in the valley" when the first ditches ran dry, said Devin's well shows there are no- or low-cost options for irrigators willing to cooperate rather than fight.

"I think the judge saw that and ruled accordingly," he said.

It's unclear how last week's ruling affects the most contentious irrigation battle in the valley.

Under a court order, the 250 members of the Methow Valley Irrigation District will be dry this summer unless district commissioners reach a compromise with NMFS and other agencies by April 1. They've been butting heads for more than a decade.

Twice, federal agencies have felt they were close to an agreement that would make the system more efficient. The Bonneville Power Administration and state departments of ecology and fish and wildlife have set aside more than $5 million for the work.

"There seems to be considerable optimism that they can converge on the few remaining issues" by the deadline, said Tom Karier of the Northwest Power Planning Council. "At this point, it's cautious optimism."