Ecology tries to justify their position in Methow Valley, states governor's salmon recovery board has named it a highest priority 

by Polly Zehm
Central Regional Director of Ecology

Letter to the Methow Valley News

I am writing in response to your Aug. 21, 2002, editorial regarding the administrative order issued by Ecology to MVID last April, as well as statements made in the news release and posters for the Aug. 24 rally sponsored by the Okanogan County Farm Bureau. I want to clear up some misunderstandings regarding the purpose and content of the order.

Statements have been made that Ecology intends to use its authority to somehow limit the water rights of thousands of water users in hundreds of watersheds across the state. Nothing could be further from the truth. Ecology remains committed to working collaboratively with irrigation districts and other water users needing to make operational changes and system improvements.

The administrative order issued to the Methow Valley Irrigation District was the result of a unique set of circumstances. Despite more than a decade of collaborative efforts to reach agreements on system design and operation improvements aimed at remedying problems in the basin, poor environmental conditions in the Twisp and Methow rivers have continued with little progress. Responding to this situation called for an uncommon approach.

Ecology has always been committed to finding alternatives to the regulatory approach. This is clearly demonstrated by the fact that Ecology has spent the last 14 years pursuing such an alternative with the MVID. Issuing an order that outlines the parameters of the district’s rights and responsibilities was an appropriate next step in our attempt to make progress, but it certainly wasn’t our first choice.

I would also like to clear up what appears to be confusion about the state authorities under which administrative orders may be issued. The MVID order was issued under the authority of the state water quality law (RCW 90.48) and water management code (RCW 90.03). Ecology has rarely used this approach, but there is clearly both an environmental and a legal link between water quality and water quantity. The state of Washington, including the governor’s Salmon Recovery Office, has identified the Methow Valley Basin as an area of highest priority for the recovery of endangered salmon species.

Due to a wasteful delivery system, the MVID’s surface water diversions from the Twisp and Methow rivers contribute to the degradation of already threatened aquatic resources in the basin. In addition, state-adopted in-stream flows are not always met, particularly during low-water years.

Has Ecology ever taken a similar approach? Yes, in the fall 2000, when Puget Sound Energy dramatically cut the flow of water through its dam for four days and dewatered the Baker River. Ecology put the utility on notice that under state law it could not use its water right in a way that compromised water quality. I would argue that the use of this regulatory tool twice in two years, in situations of clearly compromised environmental conditions, hardly constitutes a government drunk on power or hell bent on taking away people’s right to use water.

During the last two years Ecology worked with approximately 120 members of the MVID, authorizing them to convert their irrigation use to wells. This not only supplied them with a reliable source of water, but also preserved their water rights while benefiting stream flows. In addition, $4 million has been set aside for many years by the Bonneville Power Administration and Ecology to fund MVID’s rehabilitation project.

The limitations placed on the district and its remaining members restate the maximum amount that the MVID can divert without exceeding its valid rights or claims, or wasting water. The order contains diversion amounts that are not new; in fact they are consistent with the diversion amounts MVID committed to when it signed a settlement agreement with the National Marine Fisheries Service in Federal District Court earlier this year. The diversions provide a sufficient amount of water for the MVID to serve its remaining customers under normal cropping and use patterns.

A huge investment of public resources has been made for the very purpose of protecting the land and water rights of irrigators in the Methow Valley, and to assure that they have adequate irrigation water in the future.

I hope this letter clarifies Ecology’s approach by providing information about the issues that we could have contributed to the editorial had we been contacted.

The author is the central regional director of the Washington Department of Ecology.

The Methow Valley irrigation issue has been going on for two years.  Following are two stories that will give some background:

NMFS Seeks Order to Halt Irrigators

             May 2002 - The federal government will ask a judge to prevent the largest irrigation district in the Methow Valley from diverting water to its canals. The motion for an injunction was filed  [April 12] in US District Court in Spokane.

            The National Marine Fisheries Service (NMFS) says the Methow Valley Irrigation District (MVID) has not done enough to protect endangered steelhead and salmon.  Irrigators have not replaced their gravity-fed system with groundwater wells and pressurized pipes as they agreed  to do in June of 2000.

            NMFS said that diverting the water "is reasonably certain to cause the unlawful taking" of endangered steelhead and salmon.  It is the first attempt by federal agencies to shut down an irrigation district in the Methow Valley that runs solely on private lands.

            Richard Price, Omak attorney for MVID, said he was shocked by the filing because they have been negotiating with NMFS for a year to amend the 2000 agreement, and are close to finalizing it.  "We believe this is an attempt by NMFS to force us to agree to the final details of the plan."

            Price said the old agreement does not require the district to change to a pressurized pipe system if it was in compliance with the Endangered Species Act.  He said the district has been in compliance for a couple of years. "We've been operating for two years under this consent decree, and they have no proof we've been killing fish." Price said, opening the ditch will have no impact on endangered fish because their screens are in compliance and low flows that could affect river levels needed by fish won't come until July.

            NMFS spokesman, Brian Gorman said it isn't about water levels in the Twisp and Methow rivers, where the district diverts water to about 200 irrigators watering about 1,600 acres.  "It's not really about water, it's how you get the water from the river to the farmers," he said. His agency believes the district's new plan won't work.

            District directors voted in July of 2000 to reject the pressurized pipes because, they said, power costs would not make the irrigation district economically viable.

            Gorman said he's not sure exactly where negotiations are now, but two weeks ago his agency believed that the district's fish screens aren't good enough to avoid killing fish. "We're certainly looking to resolve this without dragging the district into court," he said.

            Irrigation district Director Mike Gage said the district couldn't correct its screen problems without a new agreement in place.  "The agreements they put out were agreements we couldn't agree to without giving up water rights and water use," Gage said. "These agency people, both state and federal, are nothing but liars, cheats, bullies and thieves."

            Excerpts; Wenatchee World; April 17, 2002 

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Methow Valley Irrigators Appeal Federal In-stream Flow Standards

            OKANOGAN -- May 2002 - Methow Valley irrigators who have been without water for three years are appealing a recent U.S. District Court decision that allows federal agencies to impose in-stream flow requirements that interfere with private water rights.

            The Sacramento-based Pacific Legal Foundation has agreed to handle the appeal, which was filed Monday with the Ninth Circuit Court of Appeals. The Washington Agricultural Legal Foundation will cover expenses.

            In March, District Judge Robert Whaley upheld a decision by the U.S. Forest Service, in consultation with the National Marine Fisheries Service, to deny use of diversion ditches running through the Okanogan National Forest to take water from the Chewuch and Methow rivers.

            Although the agencies never challenged the irrigators’ right to the water, they argued that diverting water from the rivers would threaten protected salmon by reducing in-stream flows below new federal standards and violate the Endangered Species Act.

            Ruling that the case was not about water rights, the judge agreed that federal agencies have the right to impose in-stream flow requirements to protect threatened or endangered species.

            The district court may think this is not about water rights, but farmers and other property owners who are facing their fourth straight summer without water don’t agree,” said Galen Schuler, an attorney with the Seattle firm of Perkins Coie, who will be working as a consultant on the appeal.

            The irrigators and Okanogan County, the lead entity for water resource planning in the Methow River Basin and co-plaintiff in the case, argue that by setting in-stream flow standards, the agencies arbitrarily created a federal water right for themselves, superceding existing water rights in violation of state law.

            We are not against providing water for fish, but federal agencies have to follow the law,” said Okanogan County Commissioner Craig Vejraska.

            In-stream flows are set by the state,” Vejraska noted. “If federal agencies want higher standards, the Endangered Species Act requires them to work with the state or buy water from willing sellers. Instead of following the law, the agencies simply confiscated the water they wanted.  At stake are legal issues that threaten irrigators and municipal water supplies throughout the West,” Vejraska added.

            The irrigators also contend that the federal in-stream flow standards are not only illegal, they are entirely unrealistic and not based on science.

            For example, scientists for the Northwest Power Planning Council have determined that the Methow River immediately below Early Winters Creek naturally runs dry in eight out of 10 years.

            But NMFS is determined to shut us down as an alleged threat to salmon and steelhead,” said Steve Devin, of the Early Winters Ditch Company. “It’s absurd.”

            Dave Jones, an irrigator who normally gets water from the Skyline Irrigation Ditch, also noted that water denied to Skyline is used by irrigators downriver whose ditches don’t cross federal land, “so the water doesn’t help fish.”

            Washington State Farm Bureau; News Release; May 14, 2002.  Contact: Dean Boyer, Director of Public Relations, (800) 331-3276; Mike Poulson, Washington Agricultural Legal Foundation, (509) 234-6281; Don Anderson, Okanogan County, (509) 422-7280. Contributions to the “Methow Project” appeal can be made to the Washington Agricultural Legal Foundation, P.O. Box 2596, Olympia, WA 98507.

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