For Sale: Washington’s rivers and streams
(map: Dept of Ecology)

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.

Skagit River basin map (USFWS 2013). This map shows just a handful of the thousands of tributaries that support Skagit salmon runs.

Here’s a good question:

“How does one put a dollar value on being in the presence of crystal clear water coursing down a steep slope through a rock-lined, moss-edged stream bed among evergreen trees, for example?  While commercial uses of the state’s instream flows might be made — tourism and paid-for recreation, for example — such uses do not entail the total benefits derived from streams and lakes.”

The Washington State Supreme Court posed this question today in its decision ruling in favor of Washington’s rivers.  At issue was whether the instream flows set by rule for the Skagit River and tributaries may be annulled in favor of development for rural housing and other uses.   The Court said ‘no’ – these instream flow rules are “water rights for the river,” and can only be revoked under narrow circumstances.

The ruling affects not only the Skagit, but several other rivers in for which recently adopted instream flow rules create development ‘reserves,’ including the Stillaguamish, Quilcene-Snow, Salmon-Washougal, Lewis, Wenatchee, and Entiat Rivers.  The ruling will also affect Ecology’s issuance of individual water rights that supercede instream flows without substantial justification.

Over time Washington’s water laws, which historically favored diversion of water for out-of-stream uses, have evolved.  In 1917, when the state Water Code was first enacted, the goal was headlong water development for irrigation, public water supply, industrial and other out-of-stream uses.

Starting in 1969, Washington water policy began to change.  The Legislature enacted a minimum instream flow program that creates instream flows (water rights for rivers) to protect aquatic habitat, recreation, navigation, water quality, and other instream uses.   As the Court noted in today’s decision, the goals have changed from helter-skelter development to focus on prudent water management, preservation of water in streams and lakes to protect public values, and avoidance of wasteful practices.

Skagit Forks – the last remaining stand of riparian forest on the lower Skagit River (WA Wildlife & Recreation Coalition)

The Skagit River is a big river, but many tributaries to the Skagit are water-stressed due to rural development and climate change impacts.   These tributaries provide important habitat for salmon spawning and rearing and indeed the Skagit is the only river in Washington that supports all six species of salmon and steelhead.

The Washington Department of Ecology adopted instream flows for the Skagit River and its tributaries, but then created “reserves” that allocate 2% of these instream water rights for out-of-stream use.    As a legal basis for these reserves, Ecology relied on a statutory exception called OCPI – “overriding considerations of the public interest.”

The Court rejected Ecology’s interpretation of the OCPI for two reasons.  First, instream flow rights are like any other water right, and exceptions that allow infringement of these rights must be very narrow.  Ecology’s broad program of “reserves” for future growth is a not a narrow approach.

Second, the Court rejected Ecology’s argument that it could use OCPI to grant new water rights that otherwise could not be obtained.   The Court found that the benefits of instream  flows are not just quantified in dollar terms, but in public values that transcend monetary quantification.  See quote above.

The decision in Swinomish Indian Tribal Community v. Ecology is a big win for rivers and people who love rivers and/or depend on them for their livelihood and culture.