Eastern Washington rancher Wade King claims in a lawsuit that the Department of Ecology exceeded its authority by fining him $267,540 for allegedly damaging an uncommon type of wetlands found east of the Cascade Range.

The lawsuit, filed Dec. 22 in Grant County Superior Court, accuses Ecology of violating King’s stockwater rights, penalizing long-standing agricultural practices and overextending the state’s Water Pollution Control Act.

The suit raises some of the same issues the U.S. Supreme Court settled this year in the Sackett decision. The high court limited the reach of the federal Clean Water Act to wetlands connected to water bodies.

The King suit challenges Ecology’s authority to reach inland and regulate pools that surface and then evaporate.

“The Sackett case was about the definition of ‘waters of the U.S.’ This is about the ‘waters of the state,’” King’s attorney, Duncan Greene, said Dec. 28. “Ecology has been definitely pushing the boundary of its authority.”

Ecology is evaluating the lawsuit, department spokesman Andrew Wineke said.

Alkali wetlands

Ecology levied the six-figure fine early this year against Wade and Teresa King, alleging the King Ranch excavated pools in 22 alkali wetlands on the ranch and on public land they lease.

Alkali wetlands are rare in Washington, according to Ecology, and the excavations degraded water quality and wildlife habitat.

Ecology looked at Google Earth images and saw equipment tracks “of some kind” leading from the ranch to the wetlands, according to department records. The department followed up by visiting the area.

Besides fining the Kings, Ecology ordered them to hire a “wetland professional” to restore wetlands on their ranch and to consult with tribes to make sure no tribal cultural properties were damaged.

Court cases

The Kings have appealed the fine to the Pollution Control Hearings Board. The Kings also are in court to stop the Department of Natural Resources from canceling a 12,838-acre grazing lease.

The new lawsuit raises broader issues of whether Ecology bypassed the state Administrative Procedure Act and gave itself authority not found in state law or regulations.

The lawsuit targets Ecology’s use of administrative orders to regulate activities in wetlands. The administrative orders did not go through rule-writing steps that would have allowed the public to comment, the lawsuit alleges.

Greene said the Kings had no reason to think they needed an administrative order.

State law defines wetlands as areas that are flooded often enough and long enough for vegetation adaptable to saturated soils to be prevalent. “Our experts say (the alkali wetlands) do not meet the definition,” Greene said.

Watering livestock

Ranchers do not need a water right to water livestock and have long dug out watering holes, he said. “No environmental damage was done,” he said. “You’re not digging where it’s wet. You’re digging where it’s dry.”

The Sackett decision left about half the wetlands in Washington unprotected by federal agencies, according to Ecology.

The department says it plans to fill the gap and is seeking funding to hire more people to issue and enforce administrative orders, and develop a dredge-and-fill permit to fill the regulatory gap opened by the Sackett ruling.