NEWSHOMEOPINIONLOCAL INTERESTRECENT ISSUESLETTERSCLASSIFIEDSLINKSHOW TO |
Methow Valley News February 7, 2001 Endangered Species County, irrigators file 60-day ESA suit notice Bills would ease trust water procedures County, irrigators file 60-day ESA suit notice by Lee Hicks Okanogan County and several irrigators have filed a 60-day "notice of intent" to sue over federal actions related to Endangered Species Act decisions in the Methow Basin. Filed Monday (Feb. 5), the notice argues that decisions by National Marine Fisheries Service, the Forest Service and U.S. Fish and Wildlife Service have exceeded federal authority and preempted state water law. Named along with the county as potential plaintiffs are Early Winters Ditch Co.; Don Lundgren, of the Lundgren Limited Family Partnership; and Ron VanderYacht. The complaining irrigators are all affected by streamflow restrictions imposed by the Forest Service under biological opinions of NMFS and USFWS. Section 7 of the ESA requires the Forest Service to consult with the fisheries agencies regarding impacts to threatened and endangered fish. The notice says that biological opinions establishing "target flows" for Early Winters Creek and the Chewuch River have in effect resulted in de facto appropriation of a federal instream water right. The notice also maintains the Forest Service exceeded its authority in restricting water use on affected ditches rather than portions that operate on federal land; questions the scientific basis for the biological opinions; and claims that the decisions were given legal standing without going through administrative requirements for public hearing and comment. Similar to a recent federal suit involving the National Association of Home Builders and the Tice Ranch, the suit also argues that agencies imprecisely over-designated critical habitat for listed fish. The notice came after county officials conferred Monday in a conference call with representatives of the state Department of Ecology and the governor’s Salmon Recovery Office regarding the relationship of the notice to sue and efforts to negotiate a state-federal-county memorandum of agreement to address water and fish issues. A negotiating session had been tentatively set for Thursday (Feb. 8). But Dick Ewing, chairman of the Methow Basin Planning Unit, said Tuesday that the status of the Thursday talks was uncertain. "It’s becoming less of a possibility." The planning unit has attempted to reach agreement with the federal and state agencies on language that would allow an agreement even if any party resorted to litigation. The agencies have balked, Ewing noted. Some officials close to the talks argue that NMFS has already filed suit against the Methow Valley Irrigation Ditch over fish issues, resulting in a consent decree in Spokane federal court. Reserving the right to sue would only protect all parties, they say. The county laid out its position in a Jan. 18 letter signed by county commission vice chairman, Craig Verjaska. The county’s attempt to reserve the right to sue, "is merely a statement of the law and in parity with the position of the federal agencies, who have brought legal action to enforce the ESA during the MOA negotiations and may continue to do so outside their commitments to the MOA," Verjaska wrote. Under provisions of the ESA, any party may serve a 60-day notice to file suit related to listed species. Some legal specialists say the notice can serve to better focus issues and act as a "cooling off" period to avoid litigation. A notice of intent to sue can remain in effect without a suit actually being filed. One of the participants involved in the county’s Monday conference call with state officials said the state appeared ready to continue the negotiations with some changes in the litigation language of the proposed basin agreement. The position of the federal agencies had not been determined at the News’ Tuesday deadline. Bills would ease trust water procedures by Lee Hicks Newly proposed state legislation would provide incentives for contributing trust water rights to improve streamflows for endangered fish. Senate Bill 5361 and House Bill 1392 would both provide that water rights could be donated on a "temporary or permanent" basis. The donation could not be credited for more than the right had been used for in any of the preceding five years. The bills would also limit donations to the extent that exercising the right would not impair other existing water rights or instream flows managed by the state Department of Ecology. Donations for instream flows would qualify for federal income tax deductions. Sen. Linda Parlette and Rep. Mike Armstrong, both 12th District Republicans, were prime sponsors in their respective legislative chambers. The freshman Armstrong was elected last November to the house seat, replacing Parlette who ran unopposed for the senate position left vacant by the late Sen. George Sellars. Similar legislation introduced last year failed to make it out of committee. Opinion | Sports |
Local Interest |
