By COOKSON BEECHER Capital Press Staff Writer, The Capital Press , 10/8/99
Farmers, don't panic Deborah Mull, attorney general for the state's Department of Ecology, pointed out that farmers shouldn't panic if the plaintiffs prevail. Nor should they think that no one will be there to hear their side of the story. "Ecology would have to issue individual orders to individual farmers," she said. "Farmers and others affected by this would be able to appeal to the Pollution Control Hearings Board and from there to Superior Court or higher." |
OLYMPIA - The state's Department of Ecology is hoping to reach a settlement with five groups suing the state for failing to have the ability to monitor how much water farmers and businesses are using.
The goal of the lawsuit is to require the agency to enforce a 1993 state law that requires those who use large amounts of water and those who take water from waterways where salmon stocks are depressed or critical to install meters or other measuring devices. New holders of water rights or permits are also required to install meters.
By doing that, the plaintiffs say, the state would be able to see how much water is actually being used. This, in turn, would help Ecology allocate water rights as well as protect both water quality and dwindling fish stocks.
Deborah Mull, attorney general for Ecology, pointed out where agriculture fits into the picture.
"If the plaintiffs prevail, any farm that diverts ground or surface water in large quantities or from waterways where salmon are depressed or critical will be affected," she said.
The plaintiffs are American Rivers, the Washington Environmental Council, the Center for Environmental Law & Policy, the Pacific Coast Federation of Fisherman's Associations and the Institute for Fisheries Resources.
"The basic idea behind the suit is not in any way radical," said Todd True, the lawyer with the Earthjustice Legal Defense Fund and the lead attorney for the plaintiffs in the case. "You have to measure the use of a resource to know if you're managing it well. It's driven by the sense that protection of instream flows and flows to protect fish are hampered by a lack of metering."" And though the Legislature passed the 1993 law requiring metering, the plaintiffs say Ecology has put other priorities ahead of this one.
Mull said the agency believes it is fully enforcing the law based on the amount of funding it receives from the Legislature.
She said the agency hasn't figured out exactly how many water-right or water-claim holders would be required to install meters, but she expects the numbers to be "significant." According to the agency's data, out of 22,808 surface-water permits issued after 1917, about 2,285 of them use more than 1 cfs, or 440 gallons per minute.
Large quantities of water is defined as anything more than 1 cfs.
Out of the 22,017 ground-water permits issued after 1945, about 3,738 of them use more than 1 cfs..
But that data doesn't include information about how many historic water--claim holders are using more than 1 cfs. Considering there are 38,305 surface water claim holders and 126,874 groundwater claim holders, enforcement of the state law has the potential to affect many water users.
"And these numbers don't even apply to salmon recovery," said Mull. "This is an absolutely significant lawsuit; the numbers alone point that out." Whether or not claimants could be required to install meters is still an open question, however.
In a Feb. 24 letter to the lawyers for Earthjusice and American Rivers, Tom Fitzsimmons, director of Ecology, wrote: "I am firmly committed to the necessity of statewide metering of diversions and withdrawls, and I hope I can resolve your concerns over this issue without having to go to court." Metering is already in place in some waterways, for example in many of the diversions in the Yakima River, as well as in the Lower Snake River and Salmon Creek in Southwest Washington.
In addition, prior to 1993, Ecology did have a groundwater metering project in Odessa due to roundwater depletions.
"Ecology has mainly done systematic projects when there is a definite need and the funding," said Mull. "But when not done on a case-by-case basis, Ecology concentrates predominantly on new water rights or changes in old water rights." She said the cost to buy and install a meter ranges from $200 for a small mom-and-pop operation up to $10,000 for a large irrigation district.
The plaintiffs are not asking for any money to address what they believe is the agency's failure to enforce the law to the maximum, but it does want the court to interpret and then fashion a remedy so the law can be enforced.
Meanwhile, neither side will discuss any details of the settlement talks.
But the first hearings deadline originally set for Oct. 8 has been postponed and no new date set, thus allowing more time for discussions. The trial is scheduled for March.
As for going after cheaters who use more water than allowed, Mull said that metering of and in itself won't get these people, although there is an expectation that Ecology would go after the true illegal users, especially if there's enough funding to do so.
But the question of "use it or lose it" also comes into play here.
"That's a hard one," conceded Mull talking about the water law that says water that's not used for five years is subject to relinquishment.
True, meanwhile, pointed out that many Western states, including Oregon, already require water metering.
"With the state's population growing so rapidly," said True, "there's a tremendous pressure on water use. We need a reliable accounting system."
Farmers, don't panic Deborah Mull, attorney general for the state's Department of Ecology, pointed out that farmers shouldn't panic if the plaintiffs prevail. Nor should they think that no one will be there to hear their side of the story.
"Ecology would have to issue individual orders to individual farmers," she said. "Farmers and others affected by this would be able to appeal to the Pollution Control Hearings Board and from there to Superior Court or higher."
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