‘Empty-gesture theatrics.’ Pasco firm to pay $125K in alleged illegal Snake River water case

Frank Tiegs LLC of Pasco has agreed to pay a penalty of $125,000 to settle a water use dispute with the Washington state Department of Ecology.

However, the settlement penalty remains unjustified, considering the facts of the case, said Darryll Olsen, chairman of the Benton County Water Conservancy Board.

“Their penalty action was empty-gesture theatrics, not prudent water resources management,” he said.

The Department of Ecology had fined the business $304,000 in fall 2021, saying it had irrigated 250 acres of land from the Snake River’s McNary Pool in 2021 without prior authorization. The McNary Pool is on the Snake River where it meets the main stem of the Columbia River.

“We stand by our penalty for Frank Tiegs LLC,” said Jimmy Norris, spokesman for Ecology, this week. “By law, water rights have a specific purpose and place of use and water users are required to work with Ecology to change them.”

On Wednesday, the two parties signed a settlement agreement, with both saying they wanted to avoid the time and cost of further litigation of the matter and neither saying they were in the wrong.

Frank Tiegs LLC has Department of Ecology authorization to use water to irrigate the 250 acres this year.

After the fine was issued last year, Frank Tiegs LLC appealed, saying it had sufficient unused water rights to cover the water it used.

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 the company was not also allowed to complete paperwork after irrigation began on the 250 acres at issue, the appeal said.

Pasco company had no prior fines

Frank Tiegs told the Tri-City Herald after the initial fine was issued that he believed the water use was legal or would not have started irrigating the property.

The appeal pointed out that Frank Tiegs LLC has had no previous Ecology fines, “despite large operations and complex portfolios of water rights.”

The appeal also argued 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.

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.

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, according to 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.

WA Ecology defends fine

“Ecology’s team is always available to assist water users to comply with the law,” Norris said. “When Franks Tiegs LLC chose to work with us, we were able to help them confirm legal water rights for the upcoming irrigation season.”

The original penalty order said Ecology could issue civil penalties from $100 to $5,000 per day and settled on $2,000 per day for 152 days of what it called illegal irrigation.

Ecology agreed that the company could have filed seasonal change applications to cover 225 acres of the 250 acres, but said that no applications were submitted for the irrigation in 2021.

Ecology also said that the violations “posed a significant threat to the environment” and that the “violations were knowing and willful.”

Since 1993, the Columbia River has been managed under a rule that requires mitigation for new surface water withdrawals.

The mitigation must replace or offset the water used under a new right, according to the Department of Ecology. It has developed programs to make water available to offset new water use for cities, industries and irrigated farms.