A Central Washington potato farmer missed a deadline to appeal an order to stop irrigating more than 500 acres by four days, losing a chance to present his case to a state board and possibly leaving him liable for illegally using an estimated 1,830-acre fee of water.
Moses Lake resident Ron Fode said Wednesday that he thought he would have some leeway in appealing the Department of Ecology’s order since he was representing himself. The Pollution Control Hearings Board, however, ruled this month that a 30-day window to appeal must be strictly enforced.
“I’m trying to be David, but David didn’t win this time,” Fode said. “I just shot myself in the foot, I guess.”
Ecology claims Fode is irrigating land not authorized by his right to draw from the Odessa Subarea aquifer. Fode received an order to stop watering June 28. The hearings board, which hears challenges to Ecology’s decisions, received Fode’s appeal in the mail Aug. 1, past the July 28 deadline. Ecology moved to summarily dismiss the case because of the missed deadline, and the three-member hearings board agreed.
In the meantime, Fode has continued to irrigate. He estimated he stood to lose about $871,000 if he stopped watering potatoes, hay and alfalfa.
Fode said he was confident in his case, based on his state groundwater right, federal water contracts and past practices.
Ecology denied Fode’s request for a seasonal change of his water rights in February. Ecology says that Fode’s groundwater right applies to land that’s also now served by surface water from the Columbia Basin Project. The state says it has invested $75 million to acquire the federal water to replace groundwater drawn from the declining aquifer.
The case involves multiple landowners, multiple legal contracts and differing takes on the events leading up to Ecology ordering Fode to stop irrigating. Fode submitted 61 pages of legal documents. The hearings board’s decision to dismiss his appeal addressed only the missed deadline.
Fode said he still hopes to work out his differences with Ecology. “I want to diplomatically go in and say, ‘Let’s negotiate this thing,’ ” he said.
Ecology’s Columbia Basin watermaster, Kevin Brown, stated in a court declaration that if Fode keeps irrigating through the end of the season, he will have illegally used roughly 1,830-acre feet of water.
Ecology has not fined Fode for using the water, but the agency will evaluate the case at the end of the season to see whether penalties are appropriate, an Ecology spokeswoman said Wednesday.
Fode said that he wasn’t sure what he will do next and that he was worried about being fined.
“I’m very concerned. My livelihood would be completely ruined,” he said. “If I made a mistake, I’ll own it, but I don’t feel like having a monetary penalty.”