A Central Washington farmer accused of illegally irrigating 530 acres will continue to challenge a six-figure fine levied against him by the Department of Ecology, his lawyer said Monday.
In a decision released Friday, the Pollution Control Hearings Board cut the fine against Ron Fode to $260,000 from Ecology’s original $618,000. The board, nevertheless, agreed the unauthorized withdrawal from the depleting Odessa aquifer was serious.
Fode’s attorney, Tom Pors, said the fine is unwarranted. He said he will ask the board to reconsider. If that fails, Fode will go to Grant County Superior Court, Pors said.
The board didn’t account for the almost 600 acres that Fode fallowed to offset the irrigation penalized by Ecology, Pors said. “There are two sides to the story, and the board didn’t consider Fode’s side of the story.”
Ecology issued the unprecedented fine in 2017, alleging Fode illegally watered 130 acres he owned and 400 acres he leased from two landowners. According to Ecology, the department denied an application from Fode to transfer his water rights to the parcels and that Fode continued to irrigate after he was ordered to stop in late June.
Fode appealed the order, but the hearings board agreed with Ecology that Fode filed too late. Fode has gone to Superior Court over that issue.
Fode filed a second appeal over the fine and whether Ecology provided him with adequate technical assistance.
The hearing board’s three members called Fode’s offense “extremely serious,” but tallied the penalty based on 52 days that Ecology inspectors say they documented irrigation or wet ground. Ecology’s higher fine was based on the assumption that Fode irrigated the rest of the summer, or 103 days.
Ecology spokesman Ryan Lancaster said Monday the agency does not plan to pursue the stiffer penalty in Superior Court. “We’re pleased the board recognized the seriousness of the action,” he said.
Ecology can fine farmers up to $5,000 per day for water code violations. Instead of multiplying $5,000 by 103, the department levied three different per-day penalties based on the size of the three parcels. Added together, the three penalties equaled $6,000 per day.
The hearings board came to its total by multiplying 52 by $5,000. Pors said the board should have reduced the per day fine considerably because Fode fallowed more land than he’s accused of illegally irrigating.
At a hearing on the penalty, Fode testified that he continued to irrigate because he thought he could work out the issue with Ecology and that he had business commitments to fulfill.
Fode subleased land and promised the tenant water to grow potatoes. Fode also had contracts with a hay company to supply alfalfa and Timothy hay, according to hearing records.
“Mr. Fode had legitimate reasons to continue watering,” Pors said.
Ecology originally also held two landowners that leased land to Fode liable. Ecology dropped the landowners from the case, holding only Fode responsible.