Okanogan water use lawsuit thrown out

Associated Press

SPOKANE — A judge has rejected Okanogan County’s claims that the federal government is illegally restricting irrigation water to protect salmon under the Endangered Species Act.

In a ruling issued Monday, U.S. District Judge Robert Whaley dismissed a lawsuit filed last June by Okanogan County and several irrigators over Methow River water restrictions they contend favor fish over farmers.

Under special use permits it issues to the Early Winters Ditch Co., an irrigation cooperative, the U.S. Forest Service has authority to set restrictions on minimum stream flows, Whaley concluded.

The judge ruled flow rates are set so that the Forest Service complies with the Endangered Species Act, which is enforced by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. Those agencies also were named in the county’s lawsuit.

"I think it is important confirmation of the fact that federal agencies have authority to protect endangered species where the use of their land is involved," said Todd True, an attorney with EarthJustice Legal Defense Fund in Seattle, which represented environmental groups in the case.

A call for comment to Okanogan County commissioners was not immediately returned Tuesday.

"The fact that he ruled this was a right-of-way issue rather than a water rights issue was important," fisheries service spokesman Brian Gorman said. "The whole issue of water for farmers versus water for fish is being looked at as a water rights issue. In this case, the judge felt it was not that at all."

Fisheries service officials have said fish and farmers tend to need water at the same time, and that balancing needs becomes difficult in low water years.

The lawsuit contended that water rights are state, not federal, matters, and that blocking irrigation based on low stream flows is unconstitutional.

Whaley ruled that the issue was access to water that flows across federal land, and not water rights.

The lawsuit was filed after more than two years of negotiations with the fisheries agency over how much water must be left in streams to accommodate salmon and steelhead species that are threatened or endangered.

The government contends farmers cannot irrigate from the Methow River if water flows drop below what they were 100 years ago, when people first started drawing water from the river. The plaintiffs say that requirement would prevent them from using irrigation water five out of every 10 years.

The Forest Service in 1999 suspended the federal permits of Methow River irrigators in order to meet target flows imposed by fisheries service and Fish and Wildlife.

Early Winters Ditch Co. had its permit suspended to run water in a main canal that crosses federal land, affecting about 30 landowners and 400 acres.

In 1998, the Forest Service concluded that many of the irrigation ditches in the Methow Valley were likely to harm endangered salmon and steelhead trout.

The ditches reduce the flow in rivers and streams, leaving less water for fish. Fish also can be killed by getting caught in diversion screens that are intended to keep the fish out of the ditches.

Steve Devin, president of the Early Winters Ditch Co., has said the lawsuit does not challenge the fact that farmers must comply with the Endangered Species Act.

The lawsuit sought compensation for landowners who are denied water rights because of the law.

Okanogan County and irrigation district officials argued that the fisheries service chose Okanogan County to test a theory that the Endangered Species Act has precedence over state water rights and the state’s water resource management.

The fisheries agency wants several Methow Valley irrigation districts to switch from old, unlined and leaking canals to pressurized pipeline systems that reduce waste and make more water available for fish.