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Methow Valley News June 24, 1999 Endangered Species Coverage Irrigators file FS appeals by Lee Hicks Irrigators using Forest Service water diversions are mounting separate administrative appeals related to permit delays this growing season that resulted from endangered species listings. One appeal was filed last Thursday (June 17), with the Forest Service’s Portland regional office by a Seattle law firm representing the Wolf Creek Reclamation District. A separate appeal, for Early Winters and Skyline ditches, was being prepared for filing by Ogden, Murphy and Wallace of Wenatchee, in affiliation with the San Francisco law firm of McQuaid, Metzler, Bedford and Van Zandt. The Wolf Creek appeal raises a number of critical issues, including whether permit delays may constitute, "an unconstitutional, temporary regulatory taking," of private property under the Fifth Amendment of the federal Constitution. The appeal also questions the Forest Service’s authority to take actions that "could result in (the district’s) loss of state adjudicated water rights." Pat Fraley of the Wenatchee firm said the appeal has similarities to that of the Wolf Creek district. The key among these is the argument that denying the ditch permits is in effect a regulatory "taking" of private property. The Early Winters/Skyline appeal also argues that the Mining Act of 1866 gives "right of way" access under state water law that "is not subject to Forest Service regulation through a special use permit." The Wolf Creek appeal traces a series of permit delays that began several years ago. The permit issue reached a crisis in April when the Forest Service notified 14 irrigators they could not operate until "consultations" related to Endangered Species Act fish listings were complete. All but Wolf Creek and the Skyline Ditch up the Chewuch watershed now have temporary permits, some after making improvements such as new fish screens. Okanogan Forest Supervisor Sam Gehr held up permits until biological opinions related to endangered fish species listings were completed. In an April 22 letter Gehr had written the National Marine Fisheries Service criticizing that agency for failing to issue biological opinions based on Forest Service biological assessments that has been submitted more than a year earlier. NMFS is the agency that listed spring run Chinook salmon and steelhead trout as endangered, and bull trout as threatened in the Methow basin. In the new appeal, Wolf Creek, represented by Williams, Kastner & Gibbs, of Seattle and Tacoma, questions the Forest Service’s decision to suspend the permit this season. Among important issues, the appeal argues, are whether the decision, "is arbitrary and capricious" and if the Forest Service was bound to follow NMFS lead if the fish agency was "in violation of federal regulations concerning the consultation process." Section 7d of he ESA requires that federal agencies conduct "consultations" regarding decisions that might further endanger listed species. The appeal also questions whether renewal of the permit would have been environmentally significant under the ESA. The Wolf Creek appeal notes that the district had operated its ditches since 1921, and that the district has a Class IV water right certificate to irrigate nearly 805 acres. The right was adjudicated in Okanogan Superior Court in March of 1984 with a priority date of Jan. 9, 1920, the appeal states. Members of the Wolf Creek district include Moccasin Lake Ranch and Sun Mountain Lodge, which depends on water diverted into Patterson Lake for the lodge’s water supply. The appeal notes that Sun Mountain is the Valley’s largest employer and the county’s largest taxpayer. Wolf Creek says it was notified in February of 1996 by the Forest Service that the permit would expire at the end of that year and would then have to be renewed to comply with the National Environmental Policy Act. Wolf Creek says it was at that time advised by Gehr that the new permit was taking "longer than expected" but would be issued before the 1997 irrigation season. However, the permit was not issued and the district continued to operate in 1997 and 1998. As of Monday (June 21) NMFS had yet to issue biological opinions. The appeal filed Friday said that, "In spite of the absence of the biological opinions, and the opinion of the Forest Service’s own biologist that it was not necessary to suspend the special use permit, the Forest Service suspended (the Wolf Creek district’s) special use permit..." The appeal also argues that the permit suspension was based on a "predicted determination" that irrigation diversion could result in, "a finding of jeopardy," a specific legal term under the ESA. However, the appeal reads, Forest Service biologist Jennifer Molesworth had advised that there were "reasonable and prudent" methods that could have been taken if water were diverted. And, the appeal notes that, "NMFS has admitted that there is no jeopardy to fish prior to July 15..." Among the measures the appeal says would protect fish, according to Molesworth, are fish traps and alternative sources of withdrawal in the watershed. A longer-term solution would involve a fish screen and bypass near the ditch headgate. Addressing the "regulatory taking" issue, the appeal says federal law requires NMFS and the Forest Service to cooperate with the state, "before acquiring any land or water, or interest therein, for the purpose of conserving any endangered species or threatened species." The permit denial in effect, "deprives (the district) of all economically viable use of its land. Therefore, the Forest Service has taken (the district’s) property without just compensation." Wolf Creek district president Nim Titcomb, who operates Moccasin Lake Ranch, said last Friday that he had received a temporary permit from the Forest Service last week. But, Titcomb said that opening the headgates was conditional on NMFS accepting the interim plans for a fish trap and haul operation in its biological opinion. "Hopefully that will all come together when the biological opinion (is issued)...but I need to get it in writing. We were told verbally that his is okay." Titcomb said one problem that remains is "target flows" that NMFS has said must be met to protect fish. If NMFS sets target flows at a restrictive level, "it might be such a short period of time that we can use the fish trap and it is going to be only about one-third to one-half of (normal) flow." "But I guess all water helps," Titcomb added. Titcomb said farm irrigation could be reduced in favor of Sun Mountain. "We are protecting Sun Mountain. My position is that I do not want to jeopardize their operation. Reflecting the issues raised in the appeal, Titcomb said the key question is: "Does NMFS have the right to exceed the state of Washington’s water powers. Then if they do, they have to pay for ‘take" (of the right)." Opinion | Sports |
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