Tri-Cities company says WA agency violated state law with ‘arbitrary’ $304,000 fine - Tri-City Herald
A Pasco land company is appealing a $304,000 fine over water use, saying the Washington state Department of Ecology acted unlawfully.
The Department of Ecology fined Frank Tiegs LLC for irrigating land from the Snake River’s McNary Pool this year without prior authorization, although the company had sufficient unused water rights to cover the water it used, according to the appeal.
At the same time, the Department of Ecology retroactively approved water use by the Washington state Department of Natural Resources on neighboring farm land, allowing paperwork to be done after the fact.
“There was and is no substantive difference between the two sets of water rights,” according to the appeal filed with the Washington state Pollution Control Hearings Board.
In both cases water was available for use, the appeal said, but Frank Tiegs LLC was not also allowed to complete paperwork after irrigation began on 250 acres at issue, the appeal said.
Frank Tiegs told the Tri-City Herald he believed the water use was legal or would not have started irrigating the property.
The appeal points out that Frank Tiegs LLC has had no previous Ecology fines, “despite large operations and complex portfolios of water rights.”
The appeal also argues that the Department of Ecology failed to first attempt to secure voluntary compliance by offering information and technical assistance in writing as required by state law.
Frank Tiegs LLC had started the process with one Ecology official for retroactive approval after being told it was not in compliance.
They were discussing the water rights transfer, as had been granted to the Department of Natural Resources, when other Ecology officials, including a regional manager, intervened and the fine was issued.
“The intervention ... was premature and served no purpose,” the appeal said.
There was no immediate harm to other water rights or to public resources, such as water for fish or wildlife, the appeal said.
The Department of Ecology said in an Oct. 20 news release that the company’s illegal use of water “threatened streamflows on the Columbia and Snake rivers — critical rivers for salmon and steelhead. This was one of the driest and warmest on record for Washington with stream flows and fish passage already compromised.”
But Tiegs said that his company had rights for at least 400 acres of water that it did not use and the unused water flowed down the Columbia River.
The Department of Ecology declined to comment on the appeal.
Other land not irrigated
Ecology officials accused him of illegally irrigating 250 acres of crops in the past growing season.
Frank Tiegs LLC did not irrigate adjacent land he owned in order to irrigate the newly planted 250 acres at issue for the first time in 2021, says the appeal. He started the process of drying up parts of the neighboring land in 2019 in preparation to plant the acreage at issue in 2021.
According to final calculations, the company set aside 223 acres without irrigation, lacking water for the final 27 acres of new land.
But when Ecology officials notified the company it was not in compliance, the company reconfigured its crop circle irrigation to drop to 225 acres of irrigated land and submitted maps to Ecology showing how the new configuration reduced the irrigation being done, a representative for the company maintains.
In addition, Frank Tiegs LLC had 50 acres worth of water that had been temporarily placed in trust with Ecology, along with other water with an active application to move it, which was more than enough to cover the 27 acres, the appeal said.
Verifying the availability of the water would have taken Ecology about two hours, it said.
In fact, Ecology told Frank Tiegs LLC that the water could be used for a seasonal transfer to cover the land in 2022, but it could not be used for 2021, even though none of it was used that year, the appeal said.
The decision to immediately assess a penalty rather than proceeding with mitigation “was arbitrary, capricious and contrary to law,” the appeal said.
The company is asking the Pollution Control Hearings Board to overturn the penalty and allow a retroactive transfer, consistent with the precedent it set with the state Department of Natural Resources.
If the board lets the penalty stand, the amount should be significantly reduced, it said.
Tiegs also owns Pasco-based Washington Potato Co., the Washington plant of Oregon Potato Co., also with its corporate office in Pasco. The company Frank Tiegs LLC has common ownership but is a separate business.
source: https://www.tri-cityherald.com/news/local/article256237552.html
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