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Methow Valley News June 24, 1999 Endangered Species Coverage County presses its case for water "certainty" by Lee Hicks It appears that key players in the endangered species and water issues engulfing the Methow Valley have at least a common objective--certainty. But what it means to each agency or water user and how to achieve it are not interpretations resting on common ground. For the National Marine Fisheries Service, which has listed several fish species as either endangered or threatened in the Methow Basin--certainty means the assurance that any fish recovery plans will be implemented and effective. But the county and landowners want to be certain that water for agriculture, domestic use and economic growth will not be held hostage to what the county fears could be potentially unreasonable, arbitrary and capricious decisions by NMFS-- particularly so-called "target" instream flows. NMFS, in the form of various representatives, has said that stream flows in the basin will be a strict standard with fish recovery as the priority. NMFS Washington director, Bob Turner, recently told the News that the agency’s "mantra" included fish recovery plans for the Methow Basin that have three basic elements. They need to be substantive, have "certainty of implementation," and include a method to monitor progress. The county is hanging its hat on the proposed county watershed planning process, resulting from an agreement with the state Department of Ecology, that has as its the centerpiece a voluntary "water bank." Water rights holders would make "deposits" of water to enhance instream flows. The depositors would in effect gain credits for giving up water, some of which would have to be placed in an "instream flow" account. County Commissioner Dave Schulz of Twisp articulated the county’s strategy in a late May address to the U.S. House Committee on Resources, chaired by Rep. Dan Young of Alaska. Schulz argued that the county should be allowed to create a "habitat conservation plan" with the water bank the key feature to respond to ESA mandates. "Okanogan County is concerned," Schulz testified, "that flawed federal biological opinions (part of the Endangered Species Act process) could become a stumbling block for long-term water resource planning, ESA compliance, and salmon recovery…" The result, the county fears, is that federal action might establish "…a n unrealistic precedent for targeted stream flows deemed necessary to avoid jeopardy or take of listed salmonids." The terms "jeopardy" and "take" specifically relate to ESA provisions. A jeopardy situation under the act could result in any water user, including a private landowners, being sued for "taking" endangered fish by not acting, for example, to reduce water use or improve habitat. It is the taking provision that concerns most landowners and has led to repeated, but unsuccessful, efforts to revise the ESA, passed in 1973. Schulz cited a recent NMFS letter that he said put the burden of maintaining stream flows on the state and county. "The interpretation set forth in the NMFS letter is inconsistent with the legal obligations and authorities of both the county and the state," Schulz testified. "There simply is not authority by which the state or county may immediately impose regulatory restrictions that curtail the use of private water rights, and there certainly is no appropriation to provide compensation that would necessarily accompany the regulatory taking of private property interests in water rights." Target stream flows have preoccupied local irrigators since NMFS, in effect, shut down more than a dozen irrigation diversions or ditches on Forest Service land by failing to issue biological opinions related to the ESA before the spring irrigation season. The ditches operate with Forest Service special permits. Opinion | Sports |
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