Irrigators files lawsuit

Odessa Subarea Irrigators and the Columbia-Snake River Irrigators Association have filed a lawsuit against the United States Bureau of Reclamation in the Eastern District of Washington, stressing that Reclamation has arbitrarily delayed and blocked the approval of a new water service contract for the irrigators’ privately funded project to bring surface water from the East Low Canal. System 1 would be the first step in the overall plan/project to bring surface water irrigation to about 70,000 acres (or more) of farmland in the Odessa Subarea, both north and south of I-90. The initial developments (Systems 1-4) would reach as far south of I-90 to Lind Coulee. The privately funded/financed project has received widespread public support from many newspapers and decision-makers as a viable, cost-effective and realistic option to immediately begin replacing the use of groundwater from the declining Odessa Aquifer in eastern Washington. Additionally, it offers a practical and reasonable solution that can be developed in a short time frame to begin effectively resolving the Odessa Aquifer depletion issue.

The surprising and arbitrary denial by Reclamation follows nearly three years of meetings and communications that irrigators in the System 1 area (and other areas) have had with Reclamation and the East Columbia Basin Irrigation District. In particular, the Reclamation capriciously denied approving or executing a water service contract that the irrigator organizations submitted to Reclamation and the irrigation district for System 1 of the privately funded/financed project. The contract would allow for the construction of a privately funded pipeline (System 1) and other improvements to deliver surface water east from the East Low Canal to about 14,000 acres of farmland north of I-90 in the Odessa Subarea by as early as 2016. System 1 Project pre-construction engineering has been completed, and the participants have secured approved financing with several major banks/accounting firms that have put together a multi-million-dollar privately financed package that will build the System 1 infrastructure to get critically needed surface water to the farms east of Moses Lake.

The lawsuit highlights that Reclamation is requiring that water be delivered from the East Low Canal to System 1 participants at an excessive and wasteful rate of acre-feet/acre, instead of allowing the water to be used more efficiently over a greater number of acres. These sort of antiquated arbitrary requirements from Reclamation threaten the interests of the System 1 participants and irrigation association members, and the overall viability of the new Odessa Subarea projects. Unfortunately, Reclamation’s position that limited irrigation water supplies should be wasted, and that irrigators must use more water than needed per acre adversely impacts the water supply of association members and Odessa Aquifer irrigators, and violates modern 21st century practices that water be used more efficiently and sustainably.

In summary, the lawsuit contends that Reclamation wrongfully withheld action and that:

The Court may “compel agency action unlawfully withheld or unreasonably delayed”;

Reclamation is under a legal duty to implement its Record of Decision to solve the longstanding and critical problems of the Odessa Subarea;

Reclamation’s decision to hold that solution hostage to the renegotiation of an existing Master Water Service Contract with the irrigation district expiring in 2020 unreasonably delays implementation of the Record of Decision;

Reclamation has yet even to commence any realistic analysis of its incremental cost to deliver replacement water, or to analyze the contracts proposed by the irrigators association back on May 29, 2014.

Reclamation’s lack of action threatens completion of the goal of implementing the Record of Decision by 2024 as required by Ecology;

Reclamation’s lack of action threatens substantial economic loss to irrigators in the Odessa Subarea, as many of the System 1 participants’ pumps are failing.

In conclusion, CSRIA urges that the Eastern District of Washington declare that:

Washington state water law allows and encourages expanding the place of use for replacement water rights;

No federal law or policy requires a so-called “normalized approach” with 3 acre-feet/acre deliveries only to the places of use set forth within existing groundwater rights;

No additional National Environmental Policy Act analysis is necessary in connection with Reclamation’s execution of contracts for the System 1 Project;

No provision of any contract between Reclamation and the irrigation district forbids Reclamation from entering into a contract with the System 1 Participants;

That Reclamation’s determinations with respect to the System 1 Project are arbitrary, capricious and contrary to law, and that BOR needs to reconsider the requests of the irrigator associations;

That Reclamation engaged in an unreasonable delay toward completion of the Program, and that a more expeditious consideration of the facts and circumstances should occur.