9th Circuit Court Affirms Lower Ruling In Washington's Methow Valley Irrigation District (MVID) Water Suit - Niners affirm lower court ruling in Methow Water Suit

(Note: Arbitrary and capricious thou art, oh 'niners.' "Brooks said the conditions the [Forest Service] imposed on the ditch permits were intended to add more water for ESA-listed fish, not to affect land use." Yeah, right ... ANYTHING that uses water -- like farming, a garden, etc. -- affects land use!)

September 16, 2003

By Bill Rudolph, Editor

NW Fishletter is produced by Energy NewsData.

billr@newsdata.com  or 206-285-4848

Fax: 206-281-8035

http://www.newsdata.com/index.html

The long-standing water wars in Washington's Methow Valley heated up last month after the United States Court of Appeals for the Ninth Circuit denied an appeal of a lower court ruling that allows the U.S. Forest Service to cut the amount of water reaching private landowners to aid ESA-listed fish.

Attorneys say the August 14 ruling could affect water law throughout the West. "This is a pretty big case," said Russell Brooks of the Pacific Legal Foundation, who led the appeal. "At issue is whether the feds can control water across federal lands."

The Early Winters Ditch Company and Okanogan County, along with several private landowners, originally sued the U.S. Forest Service for reducing the flow of water across federal forest land to private irrigators.

The federal agency said it needed to save water for steelhead and spring chinook listed under the Endangered Species Act.

The water in question had been flowing through the ditches long before the Forest Service took charge of the federal land in question or required any type of permit that allowed a right-of-way.

The plaintiffs had argued that restricting the flow was an infringement of water rights granted long ago by the state, but a three-judge panel upheld a lower court ruling that said the ditch rights-of-way permits granted by the Forest Service were subject to ESA considerations.

Attorney Brooks said the government characterized the case as being based on the Forest Service's land-use permit.

"We characterized it in another way," said Brooks, "as a regulated use of water."

Brooks said the conditions the federal agency imposed on the ditch permits were intended to add more water for ESA-listed fish, not to affect land use.

But the Ninth Circuit ruling said that federal statutes gave the Forest Service "authority to maintain certain levels of flow in the rivers and streams within the boundaries of the Okanogan National Forest to protect endangered fish species."

"But even Earthjustice characterized the suit as [being] over water" use rather than land use, Brooks noted.

Attorney John Arum, who represented intervenor Earthjustice, said the Ninth Circuit had affirmed what the group had said all along.

"This is good news for salmon because the Forest Service manages so much salmon spawning habitat along the West Coast," Arum said.

Brooks said he would file a motion for a re-hearing, but noted that the court rarely allowed them. After that, there is the possibility of taking the case to the U. S. Supreme Court.

Brooks said he has heard from parties in Wyoming and Colorado who are interested in the case.

Another ruling

In another ruling that affects some Methow water users, the Washington State Pollution Control Hearings Board affirmed the state Department of Ecology's order that the Methow Valley Irrigation District is wasting water because of leaky ditches, called conveyance losses.

The Board also directed Ecology to reexamine the irrigation system "with the goal of issuing a supplemental order adequate to address excessive conveyance losses in light of any funding options available."

The irrigation district is still deciding whether to appeal the pollution control board's decision in superior court, said MVID director Vaughn Jolley. It's likely the district will file an amended complaint.

The district had turned down an earlier offer from BPA to help fund a project to lessen conveyance losses, partly because it would have incurred excessive operational costs in the future.

But some other improvements will be made soon. On August 14, the Northwest Power and Conservation Council approved $958,000 in funding for two irrigation screens to keep juvenile fish from entering MVID ditches. The allocation is part of a settlement among federal, state and tribal parties to satisfy ESA concerns.

Jolley said a USGS hydrology study of the Methow Basin will soon be released that backs up the claims by some Methow water users that their leaky ditches actually recharge the aquifer and provide more flows in local rivers later in the year than would occur if the ditches were improved.

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Additional information:

The Pacific Legal Foundation: http://www.pacificlegal.org

Vaughn Jolley: jolley@methow.com