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Sunday, January 13, 2002 - Page updated at 12:00 AM

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Temporary halt on Columbia water permits

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KENNEWICK — A Benton County Superior Court judge has temporarily ordered the state Department of Ecology not to issue any water-rights permits for the Columbia River based on federal flow targets for protecting fish.

Judge Dennis Yule issued the order after a three-hour hearing Thursday in a Columbia-Snake River Irrigators Association lawsuit, challenging the legality of the department's "rule" that prohibits new water withdrawals from the Columbia during July and August.

The department is considering nine new water-rights applications for the river.

The case has been continued, although no date for another hearing has been set. Last month the irrigators' group accused the Department of Ecology of trying to thwart the public rule-making process by establishing an internal standard for limits on new water rights.

In its draft decisions, the agency was prepared to issue the rules if the river reached flow targets set by the National Marine Fisheries Service to protect salmon and steelhead.

The state Legislature has made it clear that the public rule-making process should be followed for decisions of this nature, said James Buchal, a Portland lawyer representing the irrigators. Instead, Ecology's latest plans on Columbia River withdrawals "just came out of the mind" of some bureaucrat and "all of the sudden everyone had to follow them," he said.

"The directive has permeated every inch of the Department of Ecology that no one gets any water unless the flow targets are met," he said.

Barbara Markham, an assistant state attorney general, tried to end the case based on technical grounds, arguing it wasn't valid to argue conditions for permits that hadn't been issued yet.

"We don't have a decision out that affects them in any way," she said. "We don't need to go any further in this case."

Yule, however, disagreed.

Markham followed up by saying that instead of making up its own rules, the state was following existing guidelines that direct the agency to consult with fish-protection agencies when making water-rights decisions.

Bob Barwin, who works in the department's Yakima office, said the state uses federal river-flow targets for guidance.

But, he said, department Director Tom Fitzsimmons never told him that he must apply federal flow targets to the water applications. Barwin said he was open to considering other ways to reduce harm to fish from water withdrawals. "We have not said we are closed to alternatives," he said.

The case drew additional attention this week when the irrigators' group accused Fitzsimmons of threatening one of the witnesses in the lawsuit — carrot farmer Bud Mercer, who has a water-rights application pending for the river.

Sheryl Hutchison, a spokeswoman for the department, called the allegations overblown and said the two men simply had a heated discussion over water rights.

Sen. Bob Morton, R-Orient, has called for an investigation into the accusations.

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