Washington Department of Ecology File
Two brothers who own an orchard in Zillah, Wash., have won the right to challenge how the Department of Ecology spends drought relief funds.
Ecology maintained its drought-response decisions are indisputable. But the Pollution Control Hearings Board has ruled Dennis and Will Jones can appeal Ecology’s denial of their application for $208,000, half the amount the brothers spent on an emergency well.
“Ecology does not have unfettered discretion, and its decision is not insulated from review,” the three-member panel stated this month in a written opinion.
The case tests the scope of Ecology’s control over $16 million the Legislature appropriated in 2015 to bring drought relief to farmers, cities and fish. Ecology distributed $6.7 million, and some money for responding to a drought has been carried over in the department’s current budget.
Ecology awarded $268,890 to reimburse the Joneses for a well that began drawing water Oct. 26, 2015, but the agency denied funding for a well that went into operation three days later.
Ecology said the second well was finished after the irrigation season and wasn’t worth the expense. The Joneses say that the department apparently doesn’t understand that their orchards needed water through fall and that in a normal year they would saved up water in ponds during the irrigation season.
The appeals board will hold another hearing Nov. 7 on whether Ecology’s decision was well grounded.
The orchard’s attorney, Jamie Carmody, said Monday that he’s confident that if the board orders Ecology to review its decision, the Joneses will be reimbursed for the second well.
“I can’t imagine Ecology not granting the funds,” he said.
“I have no idea why Ecology is really fighting this,” Carmody said. “I don’t see this having a very significant affect on the future, unless Ecology just wants to preserve the principle they have unfettered discretion to do what they want with state funds.”
Ecology’s water resources manager, Dave Christensen, said Monday that the department’s position is that it still has discretion over awarding grants. “We believe that’s our right,” he said.
The Joneses have 254 acres of organic apples, pears, cherries, peaches and nectarines. They estimated that their fruit trees could suffer more than $10 million in damages unless they invested $1.1 million to drill two emergency wells to before the winter.
The brothers, with approval from the Roza Irrigation District, formed two local improvement districts, one for each well, and applied for state funding. According to court records, Dennis and Will Jones were in frequent contact with Ecology about meeting grant requirements and fulfilling a deadline to finish the wells by the end of October.
Dennis Jones, in a court declaration, said he and his brother were shocked that Ecology denied funding for the second well while approving funding for the first.
A letter dated Nov. 12 from Ecology stated: “As the second well was not in operation until the end of the irrigation season, we determined that it provided limited benefits, which were disproportional to the high cost.”
The next day, Ecology issued a press release announcing it had funded the first well. The press release announced the well “is providing supplemental water supply for fall irrigation. ... Soil hydration in the fall helps protect the roots of fruit trees from damage caused by deep freezes in the ground over the winter.”
More recently, Ecology has raised objections in court records about how the local improvement districts were formed and funded, points that Carmody calls “hyper, technical legal arguments.”
Christensen declined to comment on whether Ecology was considering trying to take back the grant it provided for one well.
In court files, Carmody argues that lawmakers intended to help farmers such as Dennis and Will Jones, who received less than half their normal amount of water that year.
Ecology contends in court records that if it wanted to it could have spent all the money on “fish habitat projects” or “community outreach programs.”