Irrigators, State Settle Water Rights Caseby Mike Lee, Herald staff writer
Tri-City Herald, November 22, 2002
Marathon negotiations produced a historic water rights agreement Thursday that gives irrigators water and allows the state to show environmental progress to the federal government.
Forced into mediation by Judge Dennis Yule, the state Department of Ecology and the Columbia-Snake River Irrigators Association crafted a two-page settlement that parties say puts aside years of conflict and distrust.
It was an extraordinary 24-hour turnaround that bodes well for the future of Eastern Washington water development, especially since it came less than a week after a settlement in a separate suit that provided water for 50 years of Tri-City growth.
"This gives an opportunity for the state and the Columbia-Snake River Irrigators Association and all irrigators to work together to manage the waters of the state for the benefit of all," said Tom Mackay, president of the irrigators association.
Irrigators' point man Darryll Olsen and Ecology Department Director Tom Fitzsimmons set aside long-running policy differences and warmly praised each other for bringing new ideas and new balance to often-contentious issues.
"The pressure of seeing the unacceptable choices as an alternative usually brings out the best in people," Fitzsimmons said outside court. "We now have a partner in the process."
The parties called their agreement progressive, given its support of irrigation efficiency and the introduction of a program to give irrigators certainty that water supplies won't be interrupted in drought years such as 2001.
"It really sets the stage for where we go in the future," Olsen said. "We're obviously relieved to be out of conflict mode."
Yule, presiding in Benton County Superior Court, thanked both parties for being willing to suspend court hearings that started Monday long enough to find common ground.
It took nine straight hours of negotiating Wednesday with Judge Craig Matheson and another two hours Thursday morning to complete the deal.
"This is a historic agreement," said Yule. "You have all exercised good faith ... to work through what are sometimes excruciatingly difficult issues.
"You have served your own interests," he said. "And perhaps more importantly, the interests of the people of the state."
The agreement resolves litigation filed to force the state to issue seven water rights without conditions that could have allowed them to be interrupted in the summer when irrigators need water most. Those seven applications are part of a unique group that has been on hold for more than a decade.
Applicants will have the choice to ask for interruptible rights or pay $10 per year per acre-foot of water they use in exchange for the state's promise not to cut off supply when flows go below levels set in 1980.
While details still have to be worked out, that money essentially will buy "replacement" water in years when permits would have been interrupted.
Beyond that, Thursday's agreement says the state will propose a program to extend the payment option to existing interruptible rights on the Columbia River, thereby giving more farmers an opportunity to pay up front for drought mitigation.
That program will be fashioned to give irrigators the opportunity to install state-of-the-art irrigation devices and transfer saved water to the state for in-stream flows in exchange for water supply guarantees even when flows are low.
The end of the irrigators' lawsuit, coupled with last week's settlement in a water suit brought against the state by Mid-Columbia cities, clears the way for the state to complete its Columbia River Initiative. It also clears the way for the Kennewick Public Hospital District -- one of the plaintiffs in the case -- to get water after its board adopted the agreement Thursday night.
Commonly called the CRI, the state-directed process is designed to chart a scientifically based, long-term water use course for fish and development.
Until now, however, it has been harshly criticized by the irrigators association, which figured Fitzsimmons would buckle to federal demands that no more water be taken from the Columbia River to protect salmon runs.
Fitzsimmons repeatedly has said he didn't want draw the wrath of federal fisheries agents armed with the Endangered Species Act -- at least not until the state's initiative could justify additional withdrawals.
Now, he can show money paid by irrigators as the state's good-faith effort toward mitigating any damage done by additional withdrawals.
And the deal elicited some of the strongest public comments yet by Fitzsimmons about the state not being bound to the federal mandate.
"This is not about meeting no-net-loss," he said emphatically. "This is about the future."
And, he added, "We are prepared to defend the program to the federal government as satisfactory, if not more so."
Likewise, irrigation leaders don't expect trouble selling the minimal fee to farmers, given that it's substantially less than the market rate for water.
In addition, the agreement binds the parties to meet regularly to discuss implementation of the settlement and "other water resource issues."
It doesn't deal directly with the 1.3 million-acre-foot reserve of water in the Columbia River that was set aside in 1980 for development. Olsen has been pushing the state to allocate water from the reserve, but he said Thursday that's become a secondary issue.
"We are comfortable with this approach," he said. "The issue of the reserve -- as long as people have open access (to water) -- really begins to melt away."
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