(The Center Square) - A decade-long fight over water rights in Central Washington is headed for the Washington State Supreme Court.
The fight for Ron and Robin Fodé and Fode Farms centers around water use on their farmland near Moses Lake, and the State Department of Ecology contending the family had no right to tap into “a vulnerable aquifer.”
Fodé, alongside his wife, Robin, took over the fourth-generation family farm in eastern Washington in 1984 and continued growing crops and producing cattle.
They grew potatoes, onions, sweet corn, and other vegetables, but the crops require a great amount of irrigation water in a part of the state that gets very little rain.
“It was January 2017, I applied for transferring water rights, as I'd done many times in the past, and I was waiting and waiting for an answer back, just in case there were any questions,” said Ron Fodé in a interview with The Center Square earlier this year. “I was being proactive, trying to get my water rights transferred.”
He explained that the hydrologist called him Feb. 14, 2017, and gave him a deadline of the next day.
A cease-and-desist order for water use followed, setting off the near decade battle with Ecology and the Pollution Control Hearings Board with Ecology, leveling $618,000 in penalties against Fode Farms.
The crux of the argument now is that, according to Fodé and his attorneys, Ecology never provided the technical assistance required by law to help him navigate the ever-changing landscape of water rights in Washington state.
Allison Daniel with Pacific Legal Foundation is representing the Fodé’s in their case set to go before the State Supreme Court this fall.
“If they suspect a violation of the water rights or somebody's already violating the water rights, then they have to provide a way for a water user to come into compliance. It's a system called sequence of enforcement. The legislature determined that assistance is required first, before penalties are imposed,” said Daniel in a Aug. 14 interview with The Center Square.
“For us it feels like justice. These people, who are bureaucrats who are not voted in, are making decisions of power all over the United States, and especially in agriculture, where we grow food that everybody eats,” said Robin Fodé.
“I would say for nine years that we just took it. We were told not to get on the bad side of the government, where we kind of already are. If you're in a lawsuit, you already are, and we can't lose anything else. I mean, we've had to sell everything.”
The Department of Ecology responded via email about the case on Monday.
“For the last decade, the lower courts have found Ecology’s actions have followed the law in this case. We look forward to a final resolution with the Washington State Supreme Court. Ecology is committed to protecting our state’s shared water supply while providing the best possible technical assistance to water users,” wrote Ecology Communications Manager Jimmy Norris.
Daniel with Pacific Legal said the Feb. 15, 2017, deadline Ecology gave the Fodé’s was not based on state law, but some “secret rule” the agency created.
“They made up this deadline without going through proper rulemaking and then foreclosed the compliance pathway that Ron could have accessed in order to obtain water rights to lawfully irrigate the property at issue,” said Daniel.
Several water rights groups and business groups have provided amicus briefs in support of the Fodé’s, including the National Federation for Independent Business.
“Mr. Fodé is a farmer who is seeking to do everything right,” said Rob Smith with NFIB in a Monday interview with The Center Square. “You just had a government agency not trying to help him, not trying to work with him in accomplishing those goals."
"The government agency, in this instance, Ecology just coming in and saying, ‘no, you don't have these rights’, even though there's a statute that says we're supposed to help you. That's just not how it's supposed to operate.”
“Government officials need to be accountable for their decisions” said Ron Fodé. “And they did not follow the law, it’s that simple. I have to be accountable to my family, my farm and business. They have to be accountable too. And they can’t just change the rules anytime they want.”
