Endangered Species

The proposed memorandum of agreement on fish and water issues for the Methow basin has been a long time coming as Valley residents were to get a chance this Wednesday (Nov. 17) to air opinions face-to-face with those who drafted it.

In a process that has stretched over six months, the agreement has evolved from a rough outline to a final draft combed through by attorneys and county, state and federal officials.

For all the debate and negotiations, the final draft may raise as many questions and uncertainties as it provides answers.

If anything, the document describes a beginning of a continuing process aimed at water conservation rather than resolution of issues swirling around the listing of endangered fish and the "best available science" to aid their recovery.

The overriding goal is creation of a habitat conservation plan, or HCP. Such plans might be called "magic bullets" in that they can provide protection for governments and private landowners from costly litigation possible under the 1973 Endangered Species Act.

But the route to an HCP has as many bends and eddies as the streams in Methow basin, and could take three and maybe four years to complete.

Improved streamflows remain the objective, as they have been since National Marine Fisheries Service suggested the agreement last May.

The MOA puts most emphasis on voluntary water conservation, beginning next spring, to improve streamflows for endangered or threatened salmon and steelhead and bull trout. The "provisional flows," to be determined in April of 2000, will have no legal regulatory effect but will be replaced with new flow objectives in an HCP.

Meanwhile, the state Department of Ecology will promote a trust water rights program and a rule establishing a "water bank," that in theory will make water available for fish, agriculture and growth in the basin. But, Ecology and the county will have to determine, based on winter flow data from state Fish and Wildlife, if water can be "converted" from season irrigation to year-round use.

Ecology will also commit to assessing the impact of 5,000-gallon wells, which are exempt from permitting, as well as police water use by searching for waste and unauthorized use and determining the continuity of ground and surface water in certain stream reaches. And the county would be responsible for prosecuting violators.

The final draft agreement does not require Ecology to immediately adjudicate water rights or withdraw the basin from new water appropriations. But the interim enforcement measures could set the stage for that later action.

The MOA calls for a voluntary conservation effort, and says that no presumption of water law violations should be imputed to non-volunteers. But in "prioritizing enforcement actions, Ecology will take into consideration whether a water user has agreed to participate (in the voluntary program)," according to one provision.

If not enough water is volunteered, or volunteers drop out of the program, NMFS and the U.S. Fish and Wildlife Service can take action by determining that "sufficient progress" toward provisional flows has not been achieved.

From the beginning of the MOA negotiations in May, county officials have sought to make the watershed planning unit, enabled under state legislation, a part of the agreement.

In the final draft, the planning unit would be involved in monitoring streamflows, gathering data and working with technical advisory groups appointed by an implementation committee, which has primary authority over the agreement.

Yet it’s the technical advisory groups that are selected by and make recommendations to the implementation committee, chaired by Ecology and made up of representatives of the MOA signatories. The group also includes a county official and those of NMFS, USFWS, state Fish and Wildlife and the Governor’s Salmon Recovery Office, although the latter is not a signatory.

The county’s continuing role and advocacy for local control will depend in large part on its position on the implementation committee and the work of the planning unit with the technical advisory groups.

And, almost as a footnote, the MOA provides in effect an invitation for federal irrigators to join the voluntary conservation effort and eventually be part of a habitat conservation plan.

It was NMFS’ determination of "jeopardy" to fish that resulted in the Forest Service withholding special use permits for the irrigators, leading to a dry summer of discontent in the Valley.

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