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Methow Valley News January 17, 2001 Endangered Species Coverage ESA efforts balance talks, potential litigation County lawsuit "notice" is possible Analysis by Lee Hicks A convergence of factors in the new year promises to raise the level of fish and water issues to the make-or-break category on political and legal fronts. Working toward a resolution are the Methow Basin Planning Unit, Okanogan County, state and federal agencies, irrigators, businesses and property owners hoping to keep water rights intact. The effectiveness of watershed planning as a strategy to solve endangered species issues in the basin—and maybe even across the state—is hanging in the balance. At the top of a complex agenda in January is the question of whether Okanogan County will give a 60-day notice to file suit against the Forest Service, the basin’s largest landowner. The agency has shut down irrigators drawing water on federal land while enforcing disputed "biological opinions" issued by National Marine Fisheries Service. The Endangered Species Act required plaintiffs to file a 60-day "notice of intent" to affected parties before a suit can be filed. The county’s consideration of whether to file a notice has simmered since last fall. Meanwhile, the Methow planning unit is attempting to conclude negotiations for a basin-wide fish and water agreement. The parties would include the county, NMFS, U. S. Fish and Wildlife Service and the state departments of Ecology and Fish and Wildlife. NMFS listed steelhead-rainbow trout as endangered in the Methow basin in 1997 and spring Chinook salmon in 1999. USFWS listed bull trout as threatened in 1997. Although federal ditches would not be included in the agreement, there is concern that ESA "Section 7 consultations" for federal ditches that include strict "target flows" will set administrative and legal precedents for ESA Section 9 ditches that divert only on private land. The planning unit and county, which must hold hearings and approve any basin agreement, have proposed new language that would allow watershed planning to proceed even if the county takes legal action and files suit under the Endangered Species Act. The possibility of a county suit has various parties reassessing their positions. The Skyline ditch board voted Jan. 6 not to join the county notice to sue. Skyline has been talking with the Forest Service and NMFS about the possibility of re-initiating Sec. 7 consultations in which federal agencies are required to avoid actions that will not harm ESA-listed fish. Skyline is especially concerned about a NMFS biological opinion that would effectively reduce the ditch’s water right. The Skyline opinion could also affect water use on the Chewuch and Fulton ditches by setting precedents for later enforcement on those Section 9 ditches. Skyline’s attorney, Peter Fraley of Ogden Murphy and Wallace of Wenatchee, wrote in a Jan. 10 e-mail to the county that "it was made clear to Skyline that participation in the notice of intent would foreclose any opportunity to continue negotiations." Fraley said later that the possibility of jeopardizing the talks by legal actions was "communicated" by the Forest Service apparently with NMFS' urging. "If the negotiations are not productive over the next two months, Skyline will evaluate whether to file its own notice of intent at the time," Fraley wrote the county. Fraley said Skyline might also join the county suit if the ditch is not successful in the current talks. "We’re not restricting our options. It’s a very dynamic situation. We’re looking forward to these next meetings (to discuss new consultations)." The Forest Service told Skyline it could not operate in 1999, and subsequent piping, screening and headgate replacement did not enable the ditch to operate last year as well. Skyline chairman Jerry Sullivan said about 30 people attending a Jan. 6 Skyline meeting overwhelmingly favored staying out of the county legal action. Sullivan acknowledged that attorneys for telecommunications entrepreneur and investor Rufus Lumry hope to work on water problems using political contacts, but added that, "Lumry’s people have not asked the Skyline to do anything. He’s (Lumry) hired a good attorney to track this thing and keep him informed. They (Lumry Associates) attend because he’s one of the largest landowners (but) he has not asked the Skyline to do one iota." Lumry purchased the Sunny Meadows Resort, whose 9-hole golf course dried in 1999 when Skyline could not operate. With other purchases he now holds about 25 percent of the ditch’s shares, Sullivan said. Galen Schuler of Perkins-Coie in Seattle, the county’s outside legal counsel, has urged the county to file a 60-day notice to file suit, with Early Winters Ditch Co. supporting the action. Schuler has advised the county and basin planning unit that filing a notice of intent to sue should not imperil an agreement with state and federal agencies. "Any choice by any party to walk away from the MOA (memorandum of agreement) would be a political or policy choice," Schuler wrote in a reply to a News request for clarification. The opinion was copied to the county chief civil deputy Don Anderson, planning unit chairman Dick Ewing and Steve Devin of the Early Winters ditch. Schuler also said there are "compelling reasons" to proceed with planning unit negotiations and the county suit on "parallel tracks." He said the 60-day notice "is intended to promote communication to solve problems without litigation," adding that federal case law concludes the notice provision is an opportunity for a "‘cooling off period." Schuler also observed a suit challenging biological opinions issued by NMFS and enforced by the Forest Service would not terminate state and local efforts at watershed planning. Addressing a concern expressed repeatedly by planning unit representatives, Schuler wrote that federal biological opinions for Sec. 7 ditches could set "conditions" for any water user if a basin habitat conservation plan is developed as part of the agreement. Schuler added that the "ultimate success of the watershed plan and an HCP may depend on whether the legal errors in the current biological opinions are corrected." Steve Devin, president of the Early Winters ditch, said recently he supported the county notice to sue. "I really appreciate the county’s support and backing that they’ve given us. They’ve brought the resources and backing to the table that gives us a glimmer of hope with the potential litigation." R. D. Merrill Co.’s Early Winters irrigation rights were part of the extended administrative and legal wrangling over plans to build the Arrowleaf resort. The resort property was sold Dec. 29 to the Trust for Public Lands. Ewing said the planning unit had noticed some movement by agencies "in our direction" as the result of a possible county lawsuit. The planning unit decided it, "should at least have one more negotiating session with NMFS to follow through." That session is tentatively set for Jan. 30 and will include the planning unit’s proposed new language to "preserve the right to seek legal recourse without penalty of terminating the agreement...and trying to maintain the state’s involvement with the watershed plan," Ewing said. In that case, hydrologic studies, inventory of water use in the basin and other watershed planning activities could continue. "We did not want the state to drop out because of its association with the watershed plan; the process to get data is still necessary," Ewing said. Ewing said the planning unit will propose to NMFS that, "if they go ahead with the MOA and they retain target flows in the biological opinions, we want them to come to the assistance of Section 9 ditches in the event of a lawsuit (by other parties)." A critical factor in any agreement is the position of state Ecology, which would be the key agency for enforcing water-related provisions. Some irrigators affected by the ESA issues have asked Ecology officials to come out strongly in favor of defending water rights that could in effect be lost if NMFS’ target flows for Sec. 7 irrigators are extended to all diversions in the basin. As now proposed, a basin agreement would require irrigators to conserve water as part of a "stream enhancement plan" while studies to determine how much water is actually used in the basin and the relationship of diversions to fish survival are underway. NMFS has insisted that Ecology be the primary enforcement agency for a basin agreement. The state water agency would be required to initiate a moratorium on water permits, and perhaps limit 5,000-gallon- per-day "exempt" wells. But basin water users and the planning unit want Ecology to go on record to support state water law, including preservation of any water right that might be threatened by federally mandated ESA "target flows." The county and planning unit say more data is needed to determine effects on water use and fish. But NMFS insists that "best available science" shows that water must be returned immediately to streams through conservation and other means. Ewing said this week that the planning unit is particularly interested in studies of irrigation and aquifer recharge now underway by the U. S. Geological Survey. One issue is the potentially favorable effect of surface irrigation in "flushing" aquifers and improving water quality impacts from septic systems, Ewing said. NMFS argues that the streamflow goals must be in place until additional data provides the science to indicate there are better solutions. The agency says a "habitat conservation plan" is the ultimate method to insure that irrigators and other water users are protected from litigation, including third-party citizen suits related to the ESA. The predicted arrival of citizen suits, often handled by environmental lawyers, is evident in 60-day notices filed only days after NMFS released "4d" rules for Puget Sound Chinook salmon on Jan. 8. Puget Sound Energy is the subject of two notices. In effect, one notice threatens the utility with a suit if it again withholds water behind its Baker River dam and exposes salmon redds after the stream joins the Skagit River. Another notice claims the utility temporarily diverted excess water into the White River, causing fish to become stranded when flows were later reduced. The notices against Puget Sound Energy were mounted by a coalition of groups, including the Center for Environmental Law and Policy, the Federation of Fly Fishers, Northwest Ecosystem Alliance and People for Puget Sound. The groups also named the Federal Energy Regulatory Commission, which licensed the utility’s Baker River facilities. The new threats of possible litigation prompted state Department of Agriculture director Jim Jessernig to observe recently in a published report that expanded ESA actions could lead to a "litigation Armageddon." Opinion | Sports |
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