| Suit blocks Ecology's water rights calculations October 15th, 2004 By
Jeff St. John Benton County, WA - A Benton County judge issued a temporary restraining order Wednesday blocking the state Department of Ecology from using new standards to calculate water rights changes. The Benton County Water Conservancy Board and the Franklin County Water Conservancy Board sought the order in a lawsuit arguing the Ecology Department failed to follow proper procedures in how it calculates the amount of water that can be kept when a water right is transferred or changed. "If this rule goes through, it will be applied everywhere possible," said Darryll Olsen, chairman of the Benton County board. He said the new standards amount to an improper taking away of water rights. He claimed the Ecology Department has been applying new standards to recent water rights change applications without following state law that requires a formal rule-making process, including public comments. Ecology Department Spokeswoman Joye Redfield-Wilder denied Olsen's claims that the department has new standards on the matter, and defended the department's right to use the most current available scientific and technical information when managing water. "We're making our change decisions under our statutory authority and discretion," she said. "We're using the scientific and technical information that's out there to make decisions on a case by case basis." But Olsen accused the department of using unsound science to form new standards he said could reduce by an average of 10 percent or more the amount of water actually available for use for water rights being reviewed. "Their objective is to relinquish the water right," he said. The heart of the scientific dispute is over the definition of "consumptive use," or water used by crops along with that inevitably lost to evaporation during irrigation, versus "return flows," or water that returns to the soil and is not productively used to grow crops. Olsen accused the Ecology Department of choosing new standards that overestimate the amount of return flows typical for various irrigation methods. "They're trying to say all of the losses are attributable to return flows," Olsen said. "We're saying, no, these are direct irrigation application losses." Because only the "consumptive" amount of a water right, not return flows, are eligible for change or transfer under state law, increasing the amount of water assumed to be lost to returning flows will decrease the amount of water included in changed or transferred water rights, he said. Olsen said, "We need to discuss whether they need to do anything" new. He said he would prefer the Ecology Department continue using a set of "industry standards" that the Benton and Franklin counties' water conservancy boards and the department agreed to in May 2000. "Why not use the industry standards we're already using?" he asked. Redfield-Wilder argued that there's no reason to assume the way the department reviews change applications will inevitably result in loss of water rights. Rather, she said, using the best scientific information available will more realistically assess the particular situation for each water right they're applied to. "Currently the method that Darryll Olsen uses is like a cookie-cutter approach," she said. "Soil may not absorb as much water or may absorb more water, depending on weather patterns and that particular region. His model isn't taking that into account." Olsen said the new standards took him by surprise last week, when the Ecology Department reversed a Yakima County Water Conservancy Board record of decision on a water right change. "They're not bringing this out in broad daylight for review," he said. He also pointed out a letter from Thomas Buchholtz, a state Department of Natural Resources agricultural engineer, to the Ecology Department that expressed "concerns" with the new standards and asked the department to "put a hold on the use of this methodology until there is an opportunity for peer review, and any required rule making." Judge Carrie Runge has set a hearing in Benton County Superior Court for next Thursday on whether to prevent Ecology officials from applying the new standards. "Our major objective is to get them back to using the current industry standards that are now in play," Olsen said. The Ecology Department intends to file a response Monday to the restraining
order, Redfield-Wilder said.
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