Okanogan County irrigators sue federal government for water rights

Published May 1, 2001

A coalition of county officials, farmers, and ranchers in Okanogan County, Washington, announced on February 5 their intention to sue the federal government for unlawfully trying to use the Endangered Species Act (ESA) to cut off water rights protected by the state and federal constitutions.

The group’s 60-day notice of intent to sue names the National Marine Fisheries Service (NMFS) and other federal agencies as potential defendants.

“We have tried to reach a reasonable agreement over water use,” said Okanogan County Commissioner Craig Vejraska, “but it has become clear that the federal government doesn’t want to be reasonable, and we’ve been forced to take this action.”

“We’ve tried to do the right thing–on the land and at the negotiating table,” said Rusty Bonser, County Planning Director, “but it doesn’t seem to matter.” As an example, Bonser cited an NMFS biological opinion that forbids water use if stream flows fall below “pre-civilization” levels.

“That means farmers couldn’t irrigate in at least five out of every 10 years,” said Bonser. “This standard is impossible, and they know it.”

“If the federal government succeeds in setting the precedent that protecting salmon requires maintaining ‘pre-civilization’ water flows,” continued Bonser, “they could apply that same standard anywhere in the state–or the nation. They could halt most water use any time they want to.”

County officials and citizen volunteers serving on the county’s watershed planning unit have been negotiating with federal regulators for more than two years over how farmers and ranchers in the Methow Valley can stay in business and comply with the Endangered Species Act. Last year, farms and fields went dry after NMFS issued biological opinions that make it illegal for farmers and ranchers to use their water rights during the critical middle and late summer irrigation season. That cut-off followed earlier punitive actions by NMFS, including a fine and court action against the Methow Valley’s largest irrigation district.

Coalition member Early Winters Ditch Company was one of the irrigation operations shut down by federal officials. The company’s president, Steve Devin, said, “We want to find a balanced solution that protects fish and people, but NMFS doesn’t seem to care about the people.”

Coalition members say they have reluctantly concluded federal officials chose impoverished, remote Okanogan County to try to establish that the ESA trumps state water rights and state sovereignty over water resource management–something the law clearly does not allow. “They think we can’t fight back,” said rancher and lifelong Okanogan resident Don Lundgren.

Currently, Washington State is not a party to the suit, but coalition members hope for the state’s support. Only recently, Curt Smitch, Governor Gary Locke’s top salmon negotiator, responded to a salmon-related lawsuit against the state by saying, “The state is not going to give up its sovereignty.”

Okanogan County Commissioner Craig Vejraska concluded, “People in the Methow Valley agree–and we hope the State will see this case the same way.”

Brian McIntosh moderates the Alliance for America list server.