Okanogan Wilderness League has filed an appeal of a new water right decision, challenging the Washington Department of Ecology’s authority to issue water rights from the Columbia River that are not conditioned on maintaining instream flows.  The appeal also challenges Ecology’s use of “out-of-kind” mitigation that allows the user to pay into a state fund for habitat restoration projects instead of curtailing pumping when river flows are too low.  The price?  $35.00 for every 325,000 gallons sold, er, pumped.

Link here for OWL’s press release regarding its appeal.

New water rights are hard to come by in Washington State.  Most of the state’s rivers and aquifers are over-allocated, particularly during summer months when water demand is high, but rivers are over-heated and lack adequate flows to support healthy fisheries.

These days, almost all new water rights involve purchase and transfer of existing rights, trust water rights, water banking, or other “water-for-water” offsets.   However, in February 2013, the Department of Ecology adopted a water right mitigation policy authorizing itself to issue new water rights based on “out-of-kind” mitigation – that is, a water user can restore habitat or simply pay money in order to get a new water right.

At first blush, habitat restoration is an appealing concept.  Why not restore a wetland, or stabilize a shoreline, or put some logs in a river if it helps aquatic habitat?  The problem is that water is irreplaceable – insufficient quantities of water in a river present a unique problem that usually cannot be fixed by restoring another part of the ecosystem.

The other problem is that would-be water users are very happy to pay into a fund to obtain a water right that will last forever.   Water, after all, is far more valuable than money.

On September 30, 2013, the Department of Ecology issued a large new water right to Kennewick Hospital, now known as Trios Health.  Trios was bequeathed property south of the Tri-Cities, on the Columbia River, and wants to convert it to irrigated land and sell it.  The buyer is Easterday Farms, a large corporate agricultural outfit.  (Easterday Farms is the vegetable growing arm of the family business that also runs Easterday Ranches, owner of massive cattle feedlots in eastern Washington.  More on them at a later date.)

New, unmitigated water rights cannot be had from the Columbia River.   New rights must be conditioned with instream flows or offset with water from another source.  Notwithstanding this rule (discussed in the 10-3-13 Naiads post re the Skagit River court decision), Ecology issued the new right requiring only that Trios pay $35 per acre foot per year into a state fund, up to a maximum of $6 million over a 40-year period in exchange for a water right that will last forever.   Ecology will use these funds to pay for about a dozen habitat restoration projects in the Yakima, Snake and Walla Walla River basins.

The Trios water right is the first unmitigated, non-interruptible water right to issue for Columbia River waters since salmon were listed under the Endangered Species Act.  Ecology claims that this is a unique situation and a rare use of the out-of-kind mitigation policy.  But at least two other recent, large water rights have been issued that rely on off-site habitat restoration as a basis for issuing the right (the City of Olympia/Lacey/Yelm water right package and the Okanogan PUD right for the Enloe dam project on the Similkameen River).

$35 per acre foot equates to $1.00 for every 9,300 gallons of water used.  The public’s water resources have not only been sold, but at a bargain basement rate.

It appears that Washington’s waterways are now officially for sale.