A family farm’s enduring feud with the state Department of Ecology spilled into Olympia this month where the Supremes may all but rewrite how it polices water rights.
This story begins in January of 2017, when Grant County farmer Ron Fode was vying for a nod from Ecology to irrigate his fields in lieu of owning the groundwater rights to do so. The agency shot down his bid later that February. Undaunted, Fode and his landlord spent the summer floating counterproposals by Ecology, namely working out a series of water rights transfers from neighboring properties. Ecology gave them a thumbs down on the basis that those rights had dried up.
Out in the Columbia River Basin, potato farmers like Fode have to tread a maze of state-issued water rights governed by everything from shifting groundwater levels to federal water deliveries. A host of groundwater rights in these parts fall under the label of “standby” or “reserve” rights, which only activate when federal water runs scarce. The dual-source system can leave farmers thinking they’ve got a green light to irrigate, only to learn that the “standby” status of their groundwater right has gone bad should federal water (theoretically) become unavailable for that acreage.
In this case, Fode applied to transfer a reserve water right. Ecology denied it on the basis that he had blown past its internal “office deadline” of Feb. 15 to request one. Fode couched this as a catch-22 where you only learn the rules by breaking them. Ecology has insisted their stated deadline was only one factor in rejecting his request.
Here’s why you should care about this
The crux of this story rests on what state agencies are bound to do for the taxpayers who fund them. Moreover, it could better define how accessible a public resource ought to be for the public in drought country. Another low-water year could turn this case into a watershed moment for farmers.
By the end of 2017, Ecology fined Fode some $620,000 for allegedly tapping into the Odessa aquifer to (illegally) douse his 400-acre property. The agency cited wet fields and rotating pivots as proof, per court documents. Fode chalked it up as the work of heavy fog or morning dew. The Pollution Control Hearings Board and the state Court of Appeals disagreed, balking at the notion that Ecology needed “meter-perfect” evidence of every gallon pumped.
Cue the National Federation of Independent Business and the conservative Pacific Legal Foundation, which stood beside Fode in the court. His attorneys allege he was not only issued excessive fines but denied the assistance owed to him. They cited this specific RCW, which reads:
“The department shall prepare and distribute technical and educational information to the general public to assist the public in complying with the requirements of their water rights and applicable water laws.”
The state Court of Appeals nevertheless held that Ecology wasn’t obligated to find water for Fode. Naturally, Fode argued otherwise. Hence his petition to the Supremes.
State agencies have enjoyed broad discretion to edit their rulebooks, particularly since the state’s high court gave Ecology a hall pass to set CO2 emission standards at its own pace back in 2015.
It remains to be seen if the new faces among the Supremes opt to change course.
A telling bit of satire
By Jonathan Martin
The nanny state in Washington has gone so helicopter mom that it’s no longer legal to cruise, joyride or go “driving with no place to go,” as of last Friday. Gov. Bob Ferguson’s statement as he signed SB 626 said the absurdly vague restriction “ensures our roadways are used responsibly and with purpose.” What are the kids to do in Washington… and Ohio, Florida and Kentucky?
That’s right, the exact same law was passed in blue and red states alike, according to a fake Facebook post circulating last week. No such law was passed in any of those states. But with its official-looking letterhead from Ferguson’s office and the other states, the satire prompted pro forma outrage comments about government overreach. It did get the state Senate’s bill numbering convention wrong, but you can’t trust AI to get everything right.
We aren’t in the habit of re-upping hokum, unless it’s kinda funny and telling, as this bit was. Social media has increasingly become an echo chamber to reinforce pre-existing beliefs. This one went viral enough to prompt a response from Ferguson’s official FB account, which asked for users to report it to FB.
It also prompted a story from The News Tribune and the beloved BS-checkers at Snopes, headquartered in Tacoma. Be careful what you wish for, folks.
This story first appeared in the authors’ politics newsletter, The Washington Observer.
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