Salmon | Naiads

January 16, 2018
by naiads 1 Comment

Hirst: The Bigger Picture

Water law is in the news with the famous “Hirst” decision being used to blockade the state capital budget. To understand how this roaring mouse could hold up a billion-dollar budget, several myths need dispelling. The bottom line is that proliferating wells are harming Washington’s public resources, especially aquatic habitat.

First, a quick explanation of water law. Under state law, every drop of water belongs to the state, unless owned by the Tribes. To use water you must obtain a permit, called a water right, from the Department of Ecology. The major exception is for permit-exempt wells, i.e., wells that supply rural homes and businesses. The exception states that parties may use 5000 gallons per day of groundwater for household or commercial use, plus water for a half-acre of lawn or garden, plus water for livestock.

Based on this exception, hundreds of thousands of so-called “permit-exempt” wells have been drilled around the state. The Department of Ecology documented the increasing number of wells between 1970 and 2010 in an eye-popping set of maps.

Myth No. 1 is that permit exempt wells use only 1% of the total water use in Washington, and therefore cannot harm streams. In fact, it doesn’t matter what total statewide usage is. What does matter is the number of wells in smaller watersheds and their impact on local streams – especially when those streams provide nursery habitat for salmon.

Myth No. 2 is that we know how large the problem is. In fact, we have no idea how much water is used by these hundreds of thousands of unpermitted wells because, unlike city water systems, private well owners are not required to collect or report their usage. And that usage can be very large. For example, in 2011, the Washington Supreme Court ruled that permit-exempt wells may use unlimited quantities of water for livestock, including large feedlots. At issue in that case was a cattle feedlot that was using 600,000 gallons per day.

To suggest that permit-exempt wells involve only small quantities of water and have no impact is wrong. And because there is no permit up front, no metering, and no enforcement after the fact, permit-exempt well owners can use enormous quantities of water, and no one is the wiser.

Myth No. 3 is that pumping groundwater doesn’t impact streams. In fact, virtually all groundwater is connected to surface water. Private wells tend to be shallow, because the deeper you drill, the more it costs. Shallow groundwater is usually connected to the nearby stream, and when you pump a permit-exempt well, the water shows up missing in that stream. Denying this is like denying the existence of gravity.

Myth No. 4 is that the Hirst decision is disproportionately harming rural development. The truth is that no one – rural, urban, agricultural or industrial – can get a new water right unless they offer mitigation to prevent impacts to the environment and pre-existing water users. Hirst levels the playing field, putting permit-exempt wells on the same footing as all other water rights: water for water mitigation is now the prevailing rule.

Myth No. 5 is that streams don’t need high water flows. The fact is that a good year for water, with adequate snowpack and rain to keep rivers flowing in summer months, creates a good year for fish. Regrettably, that doesn’t happen very often, especially with climate change. We must protect high flows in our rivers and streams when they do occur, so that species other than humans can survive and thrive.

The Hirst decision brings Washington water management into the 21^st century. Rather than tear it down, the State Legislature should use this opportunity to fix problems such as unlimited water use for animal feedlots and lack of regulations to protect flows in all of Washington’s rivers.

January 18, 2017
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New Report Debunks Washington’s Dam-Building Program

Sandhill cranes migrate through Lower Crab Creek, where the Office of Columbia River spent millions studying a new dam that could not be built. (Photo: Kathy Admire)

Over the past ten years the Washington Department of Ecology Office of the Columbia River (OCR) has spent $200 million financed by taxpayer-backed bonds in an attempt to build more dams and increase water supplies in eastern Washington. OCR is quite adept at touting its achievements, particularly when the legislative budget process rolls around.

However, a new, independent report by Power Consulting of Missoula concludes that the OCR is overstating its accomplishments, and suggests that the Washington Legislature should seek a performance audit of the program before it considers shelling out any more of the public’s cash. Specifically, the Power Report concludes that OCR has:

Misrepresented the amount of water that it has actually put to use in eastern Washington,
Failed to acknowledge the need for hundreds of millions more dollars to bring current projects to fruition, and
Wasted a lot of money investigating proposed new dams that it should have known could never be built.

The report, Department of Ecology Office of Columbia River: The Last Ten Years, examines OCR’s decade long agenda of studying dam sites and developing water projects, with in-depth review of the Odessa Subarea water project, the Yakima Integrated Water Plan, and the Icicle Strategy . The conclusions are eye-opening.

For example, OCR claims credit for “developing” nearly 400,000 acre-feet of water for new supply. Most of this is not “new” water, and instead would be re-allocated out of existing reservoirs. Of that water, most has not been delivered to water users. This is because of the enormous and expensive infrastructure needed to move water from the reservoirs to the farms that are the intended beneficiaries.

The Power Report also evaluates the Yakima Basin Integrated Water Plan, and concludes that assumptions about the benefits of its expensive water storage projects are speculative and implausible. The proposed storage reservoirs could cost Washington taxpayers as much as $2 billion.

The Report builds on earlier studies that conclude the benefits of building more dams in the Yakima River watershed cannot be justified by the costs. A study by WSU’s Water Resources Research Center, “Benefit-Cost Analysis of the Yakima Basin Integrated Plan Projects,” concluded that the Yakima Plan’s proposed storage projects would result in economic losses. However, providing fish passage at existing reservoirs and utilizing water right markets, the Yakima Plan could achieve the goals of the Plan, but at a much improved benefit-cost ratio.

The Power Report also evaluated the Odessa Subarea “groundwater replacement” program which involves pumping Columbia River water into an extremely arid portion of the Columbia Plateau where the potato industry has over-pumped the groundwater system for decades (primarily to produce french fries), and is now seeking a water bailout at public expense. OCR claims success, but the Power Report points out that only about 3,000 acres have been switched to surface water, with massive infrastructure – and massive public subsidies – required for the remaining 80,000 acres.

(For background, see studies and reports criticizing the economics of the Odessa Subarea project.)

The Power Report also evaluates the Icicle Strategy – a proposal to pump water from lakes in the Alpine Lakes Wilderness to provide municipal water supply to the City of Leavenworth. The Report notes the controversial nature of the project, given the extreme popularity of the Alpine Lakes Wilderness, and suggests that the problems of water supply be addressed through aggressive water conservation and development of regional water markets. More information on the Icicle Strategy can be found in this blog’s 4-part series New Dams and Diversions in the Alpine Lakes Wilderness and Icicle Instream Illusions. Alpine Lakes Wilderness Society (ALPS) also opposes the Icicle Strategy.

The Power Report concludes in pointing out that the OCR has spent millions on studies of dams that were infeasible from the start. These include the Lower Crab Creek and Hawk Creek dam proposals, which would have flooded substantial amounts of wildlife habitat, and the Shankers Bend dam, which would have flooded into Canada. The bottom line? The Office of the Columbia River has wasted substantial amounts of public funding pursuing projects that were doomed from the start.

The Power Report was commissioned by Sierra Club, which has long opposed dam building and dam operations in the Columbia Basin. Legislative testimony by Sierra Club and ALPS details the concerns about OCR’s 2017 budget request.

May 4, 2016
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Alpine Lakes Wilderness Comment Deadline: May 11

Colchuck Lake, Alpine Lakes Wilderness (USDA)

After spending more than three years and a million taxpayer bucks, Chelan County and the Washington Department of Ecology have finally put out an environmental scoping request for the Icicle Work Group’s “Icicle Strategy.” This document identifies our government’s plan to further dam and drain several lakes in the Alpine Lakes Wilderness area for future consumption by Wenatchee Valley developers and irrigators.

Complete details about the impact of the project can be found in the Alpine Lakes Protection Society’s (ALPS) latest newsletter.

People who care about the Alpine Lakes Wilderness – one of America’s most beautiful and popular wilderness areas – need to speak up. Comments regarding the scope of the environmental impact statement must be received by May 11, 2016:

Mike Kaputa, Director, Chelan Co. Natural Resources Dep’t
Via e-mail: mike.kaputa@co.chelan.wa.us
Via snail mail: 411 Washington St., Suite 201, Wenatchee, WA

The SEPA checklist and various descriptions of the Icicle Work Group’s proposal are posted on Chelan County’s website. Here are a few observations that may guide comments.

The Icicle Work Group is a self-appointed conglomeration of government agencies (federal, state, local, tribal), water resource users (irrigators and municipal water suppliers), and a couple of environmental groups interested in getting contracts to do projects. The IWG has no members who are advocating to protect the Alpine Lakes Wilderness.*

The IWG’s “guiding principles” establish that whatever comes out of the process must be a “quid pro quo” deal. Thus, any benefit to the environment will be accomplished only if new water rights are created to fuel development and sprawl in and around the City of Leavenworth, Cashmere, Dryden, etc. These water rights will extract water from the Alpine Lakes Wilderness: Eightmile, Colchuck, Klonaqua, Nada, Snow, and Square Lakes. To obtain this water, the cities will have to build dams and other infrastructure, and will inundate Wilderness lands as well as draw down the Wilderness lakes. You can read the details in the Alpine Lakes Optimization & Automation Study (Table 6, p. 62 provides a handy summary.)

The Icicle Work Group asserts that this plan is environmentally beneficial because it will improve instream flows in Icicle Creek. This assertion is (largely) false. There will be minor improvements to streamflow, but most of the water promised to Icicle Creek is interruptible – that is – in water-short years the cities and irrigators will be able to take their full allotments of water regardless of how little is flowing in the creek. There will not be enough water to protect the endangered steelhead and bull trout that inhabit Icicle Creek.

More analysis of these problems may be found in prior Naiads posts, such as Icicle Instream Illusions, and New Dams and Diversions in the Alpine Lakes Wilderness.

Here’s what the IWG needs to hear:

The EIS must consider a Wilderness Protection Alternative. This alternative would promote wilderness values as set forth in the Wilderness Act of 1964, would not allow new water infrastructure or diversions inside the Alpine Lakes Wilderness, and would require all new water supply to be obtained outside the Alpine Lakes Wilderness.
The EIS must consider a Water Conservation Alternative. This alternative would assess using aggressive water conservation measures by Wenatchee Valley cities, including restrictions on lawn watering (as the citizens of Seattle have learned to do). This alternative should also assess transfer of water rights from irrigation districts to cities, where orchards have already been torn out and replaced with residential subdivisions. This alternative should also assess agricultural irrigation efficiency, such as replacing open gravity canals with pipes and pumps and other 21st century concepts. A proposed Conservation Alternative is linked here.
The EIS must consider an Irrigation District Water Right Change Alternative, which would fix Icicle Creek’s low flow problem. This alternative would evaluate moving the Icicle-Peshastin Irrigation District’s water right diversion, which presently takes 100 cubic feet per second out of Icicle Creek, to the Wenatchee River downstream about 3 miles. This measure, which would permanently fix Icicle Creek’s low flow problem, would convert the IPID diversion from gravity flow to pumping (requiring electrical power). The Icicle Work Group should therefore analyze renewable energy options to supply that power, including solar, wind and in-canal hydroelectric.
The EIS must consider a Water Right Relinquishment Alternative. Removal of water from the Alpine Lakes Wilderness is on the table only because IPID holds water rights that were grandfathered when the Wilderness was created. And – as IPID will tell anyone who will listen – every year they use what they need. When the dam at Eightmile Lake fell down decades ago they didn’t fix it because they did not need more water. When a party doesn’t use their rights, they lose them. “Use It Or Lose It” – the basic rule of western water law – is controlling. The EIS needs to analyze this.

The IWG’s plan to exploit the Alpine Lakes Wilderness is a camel’s-nose-under-the-tent proposal. As climate change alters the hydrology of the western U.S., we can expect to see many attempts to expand water projects that were grandfathered into wilderness areas. Wilderness advocates need to weigh in by May 11, for the sake of Alpine Lakes and for wilderness values in general.

__________________________

*The Alpine Lakes Wilderness Society (ALPS) was invited and declined to participate. The Center for Environmental Law & Policy (CELP) participated in IWG meetings for two-plus years and then resigned when the operating procedures were changed to gag CELP’s objection to wilderness water projects.

July 16, 2015
by naiads 1 Comment

Nooksack Water Thievery Redux

Sherman Polinder graphics 20150625-09_signed

The aerial map at top shows the location of a Nooksack Nine diverter (red dot). The photo shows the diversion device. A comparison of GPS coordinates reveals that, on June 24, 2015, Ecology issued Water Right No. S1-28777 for this diversion location to Sherman Polinder. Under the terms of the permit, Polinder is prohibited from diverting when Nooksack River flows are below their minimums, as was the case when the photo was taken.

As reported in our recent post, “The Tale of the Nooksack Nine,” the Department of Ecology went above and beyond its usual water mismanagement when — faced with clear evidence of illegal water diversions from the Nooksack River – the agency decided to issue permits, rather than penalty orders, to the culprits.

More recently, it has been revealed that the Nooksack Nine — who now possess water rights — continue to divert in violation of the requirements of their newly issued rights. When does it stop?

On June 24 and 26 Ecology made good on a bad idea and issued water rights allowing the Nooksack Nine to divert water. These rights are, of course, interruptible. The permittees may use water only when the Nooksack River is meeting its regulatory instream flows. And because the Nooksack doesn’t meet those flows 50-80% of the time during summer months, these new water rights don’t provide much water.

(As noted in the previous post, these rule-based instream flows are inadequate to support salmon life cycles, and need to be updated to protect higher flows.)

June 2015 flows in the Nooksack River (blue line) are well below the instream flow rule – which requires post-1976 water users to curtail their use.

The Nooksack River – like virtually every other river in Washington this year – is way, way below it’s normal flows. The graph at right indicates the Nooksack is at the lowest levels ever recorded for this time of year. So anyone with a water right issued after 1985 should not be diverting at all.

On June 25 and 30, 2015, Lummi Nation staff again floated the Nooksack River and identified 39 potential illegal diversions.

And guess who was diverting? That’s right – seven of the Nooksack Nine diverters were taking water out of the river – in violation of their brand-new rights.

Never mind that Ecology promised that enforcing these new permits would be their “number one priority.” Never mind that Lummi Nation and CELP asked Ecology to not issue the permits in the first place. Never mind that this sets a terrible precedent for hundreds of other illegal water users in the Nooksack basin.

The aerial map at top shows the location of a Nooksack Nine diverter (red dot). The photo shows the diversion device. A comparison of GPS coordinates reveals that, on June 24, 2015, Ecology issued Water Right No. S1-28775 for this diversion location to Ed & Dale Blok. Under the terms of the permit, the Bloks are prohibited from diverting when Nooksack River flows are below their minimums, as was the case when the photo was taken.

On July 14, 2014, Lummi Nation sent letters to Maia Bellon, Director of the Department of Ecology, documenting the 39 potential illegal diversions and requesting enforcement action. Here’s how Merle Jefferson, Director of the Lummi Natural Resources Department summed it up:

Illegal water diversions from the Nooksack River and its tributaries have been occurring far too long, to the detriment of salmon and the Lummi Nation’s treaty rights to harvest. We expect that Ecology will enforce existing state laws and issue both cease and desist orders and appropriate monetary penalties when it is determined that individuals are diverting water without a legal right to do so. Ecology should not allow individuals and business to illegally divert a public resource for profit at the expense of others and the natural environment that depend on the same resource.

Well said.

And we would add – Ecology claims that its enforcement authority is limited to a “step-wise compliance process” and that it cannot issue enforcement orders and penalties without first “working with” the violator. This is wrong. The law is clear. No one has a right to take public waters without a permit, or without being in compliance with their permit. Ecology’s handholding with unauthorized water users is incorrect as a matter of law and unsound as a matter of public policy.

In point of fact, Ecology should shut down the diverters and fine them $5,000 per day for each day of illegal water diversion. Indeed, the unauthorized use of water is a criminal misdemeanor, the local water master has the power to arrest water code violaters, and the local prosecuting attorney has the duty to assist.

Nooksack River water thievery is illuminating the Department of Ecology’s inability and unwillingness to uphold the law and to protect water resources that the state holds in public trust for the common good.

In a year of drought, this really matters. Is any elected, appointed or employed official with the State of Washington listening?

___________

This is the third in a series of articles on Whatcom Water Insanity. Part 1 examines water stealing by the City of Lynden. Part 2 tells “The Tale of the Nooksack Nine.” Jean Melious’ blog, Get Whatcom Planning, also provides great info about Whatcom County water woes. Photos and graphics above are courtesy of the Lummi Nation.

June 9, 2015
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Drought Conundrums

Rocks are emerging out of the Spokane River as flows dropped from 4,000 cfs over the weekend to the 1,500 cfs shown here. (6-9-15)

You’d have to be a hermit to be unaware that Washington state is having a bad water year. The winter of 2014-15 was very warm — 5 degrees F warmer than average. It rained plenty, but snowed little. And what snow there was is now mostly gone.

Spring runoff for most rivers came weeks if not months early, and rivers are now flowing at levels we’d expect to see in mid-summer. Rivers need snowmelt to sustain flows throughout the summer. Unless it rains, hot weather will cause an increase in water temperatures in streams and rivers. Combined with low flows, river conditions will be hostile to salmon and trout species that need cold, abundant water to migrate and complete their life cycles.

Pacific Ocean Sea Surface Temp Anomalies (NOAA 6_8_2015)

The 2015 El Nino – Pacific Ocean Sea Surface Temperature Anomalies as of June 8, 2015 (Graphic: NOAA)

And, it probably won’t rain. El Niño, the ocean-warming phenomenon that drives weather patterns, is present in the North Pacific. NOAA scientists are observing high sea surface temperatures – unusual for this time of year – and predicting an 80% chance that El Nino will last through the end of the year.

Washington State University’s Agriculture Weather Network translates the El Nino phenomenon into a prediction for Washington’s summer weather: El Nino typically “leads to warmer weather and less precipitation across much of the Pacific Northwest.”

The bottom line: Washington state is in the midst of a very serious drought. And, there’s potential it will become a multi-year drought — similar to California.

Given all this, questions come to mind about water management in Washington state. In some communities, it appears we neither recognize the dangers nor are responding in a logical fashion to the risks at hand. One way or another, money appears to be a predominant factor in drought response.

No comment. (Graphic: waterwiseirrigation.com)

Question: Why is it there is a major focus on getting emergency water supplies to farmers (especially in the Yakima River basin), but municipalities such as Seattle, Tacoma and Spokane are either messaging “everything’s okay” or just not saying anything at all?

Short Answer: Summer is the big revenue season for municipal water suppliers (primarily because of residential outdoor irrigation). Water purveyors do not want to signal that their customers should conserve because it will result in reduced revenue and hurt their bottom line. Regrettably, rivers will be seriously harmed because of this ‘no-conserve’ message, which is being disseminated not just by the purveyors but also by the Dept of Ecology and the Governor’s office.

Question: Why did “junior” water users in the Yakima basin plant cherry and apple orchards and other perennial crops, even though they were fully aware they would have limited access to water during a drought?

Short Answer: Water users who hold “junior” or “interruptible” water rights are on notice that in a water-short year, their water supply will be cut. When farmers with junior rights plant crops that cannot survive without regular irrigation, they are making an investment decision that involves substantial economic risk. In reality, junior water right holders have been betting on a bail-out. Per next item, they appear to be getting one.

ECY Drought Response Budget (ECY Website 6-9-15)

The Department of Ecology will spend millions of dollars to subsidize farmers who made bad choices about crop plantings, but only $25,000 on “conservation education. From Dept. of Ecology 2015 Drought website.

Question: Why is the state spending millions of dollars in public subsidies for water mitigation for orchardists who are now destroying last year’s apple crops?

Short Answer: Washington farmers are destroying large amounts of last year’s apple crop that they were unable to sell. They blame the inability to ship to international destinations due to port slowdowns, but last year saw record apple over-production. What are the chances that Washington state will subsidize apple crops this year that will be destroyed next year? Indeed, the Department of Ecology is spending millions of dollars to underwrite drought leasing programs and emergency well use in the Walla Walla and Yakima River basins for agricultural users who hold junior water rights.

Washington’s Office of the Columbia River has spent nearly $200 million on water supply projects over the past 8 years, but very little of it has been directed toward water scarcity and drought response. Instead, OCR has function more like the Office of Cadillac Desert, studying dams and other irrigation projects that, if built, will ultimately cost taxpayers billions of dollars.

Question: Given drought conditions, why is the Department of Ecology issuing new water rights in areas where water supply is likely to be deficient?

Short Answer: For the last 3 years, the state legislature has included a budget proviso requiring Ecology to issue at least 500 water right decisions each year or lose a half million dollars in budget. This has converted the Water Resources Program into a permit factory.

One example of the ensuing folly is the proposal to issue water permits to illegal water users in the Nooksack River basin. Agency resources for the type of water management activities critical for managing for drought have dwindled to negligible levels (e.g., metering water use, promoting water conservation, measuring available surface and ground water supplies, enforcing against illegal use).

Meanwhile, of the state’s nearly $10 million drought budget, only $25,000 is dedicated to “conservation education.”

As rivers recede, the 2015 drought promises to reveal many mysteries and closeted skeletons. Who is making money off of drought? How low can our rivers go? The salmon life cycle is 2-4 years – how will the 2015 drought affect salmon returns in 2017-19? Will farms go out of business? Will farmers make more risk averse cropping decisions in the future? Inquiring minds, stay tuned.

May 4, 2015
by naiads 3 Comments

The Tale of the Nooksack Nine, or, the Rewards of Water Thievery

This is Part 2 of a series on Whatcom Water Insanity, covering illegal use of water in the Nooksack River basin. See Part 1 here. See paragraph at bottom for two post-publication corrections.

______________________

Nooksack River wrapping around farms near Ferndale, WA. (Image: Landsat.com)

Just as California drought provides compelling lessons about the price – economic, social, and environmental – being paid for water mismanagement, we also have examples in Washington State.

Whatcom County is notorious as one of the most lawless water basins in Washington State. For years, illegal water diversions from the Nooksack River have been reported in articles, conference presentations, legislative testimony and more.

And what’s crazy is that this illegal use has actually become an accepted modus operandi. Nevermind that diverting water without a permit is a misdemeanor, or that stealing water causes systemic harm to the environment, including endangered fisheries and water quality. Rather, there appears to be widespread agreement that illegal use of the waters of the Nooksack watershed is nothing more than business as usual.

No one has done anything about it – until now. Unfortunately, what’s being done is dead wrong.

The Department of Ecology has claimed (for years) that it lacks the resources to identify and enforce against unpermitted water use in Whatcom County.

Nooksack Chinook running the gauntlet of low flows (Image: NWIFC)

In 2013, the Lummi Nation decided to assist on the data collection side of the matter. Tribal staff floated the Nooksack River in the vicinity of Deming, Washington. GPS readings were taken wherever a water diversion pump was found, then compared with the state water rights database. Thirteen “unpermitted” users were identified.

Lummi Nation staff provided their data to Ecology. Reasonable minds would expect Ecology to order these malefactors to cease pumping and pay penalties. This seems particularly important in the Nooksack basin, where a clear signal needs to be sent to end water thievery.

But Ecology did not issue orders or penalties.

Instead, Ecology has decided to reward the illegal diverters by giving them permits.

Ecology has drafted a template to issue water rights to the Nooksack Nine. Click here to view it.

This approach would be wrong in almost any circumstance, but it is particularly egregious given the condition of the Nooksack River. The illegal users will be required to curtail their use whenever Nooksack River flows drop below what’s required in the Nooksack Instream Flow Rule. As shown in the graph at right, during the irrigation season that happens between 50-75% of the time.

To ensure that water users comply with the terms of their permits, ie, curtail their use 50-75% of the time, requires enforcement. But lack of resources is the very reason Ecology claims it cannot identify, much less stop, illegal water use in the Nooksack basin. How is it that Ecology now has the capability to police these permits?

Ecology’s general lack of enforcement capability – particularly in the water resources realm – is well documented. See, for example, Dan Chasan’s 2000 study, “The Rusted Shield,” or the Center for Environmental Law & Policy’s 2002 white paper, “Dereliction of Duty.”

Just this year, Ecology acknowledged on its website that its poor record of water rights enforcement is dissolving into non-existence. For the last three years the Washington State Legislature has converted the state Water Resources Program into a permit factory, requiring it to process at least 500 water right decisions per year or lose $500,000 in budget. As a result, “Ecology staff have needed to reprioritize and temporarily defer some work in other water rights categories including permit management, plan review, seasonal changes, enforcement, and technical assistance.”

So, Ecology will actually get credit for issuing permits to the Nooksack illegal users.

Even more problematic is that the illegal users will be taking water that is needed for fish. The instream flows established in the Nooksack Rule, adopted in 1985, are out of date and scientifically unsupported. These rule-based flows, even when met, are not adequate to protect salmon and other species.

Pursuant to the Nooksack (aka WRIA 1) watershed planning process, to which Ecology has contributed about $800,000, studies demonstrate that higher flows are needed for fish. The graph at right compares the appropriate biological flows (in green) with the flows set forth in the rule (in red).

These flows are derived from studies that Ecology funded and concurred in. So why is the agency issuing new permits conditioned only on meeting the lower flows?

The bottom line is that the Department of Ecology should not be issuing water rights that will drive the river toward the red line flow, and fail to preserve the ability to restore water to the green line flows. Ecology especially should not be issuing new water rights to scofflaws who for years have stolen the public’s water.

This situation reveals the unseemly essence of Washington state water resource policy. Every drop of water that can be justified as available – even under the thinnest of pretexts — will be allocated for out-of-stream use. We see it not just in the Nooksack, but in river basins throughout the state.

The state’s “water grab” policy — combined with exercise of unused municipal water rights, water thievery and waste, and the depleting impacts of drought and climate change — will destroy the public interest and values in Washington’s rivers. You don’t have to look to California to see the devastating consequences of a state mismanaging the public’s water.

This is the second article in a series focusing on water resource issues in Whatcom County, Washington. Part 1 addresses the City of Lynden’s efforts to get the Legislature to change the law and “fix” its illegal usage. Readers should also check out the superlative water & land use blog, Get Whatcom Planning.

We’ve made two corrections to this article since original publication. First, the tribal survey of illegal diversions occurred in the Deming reach of the Nooksack River (not the Ferndale reach). Second, the Department of Ecology contributed $800,000 toward watershed planning, not $2 million. The other $1.2 million has been spent on post-planning technical work and instream flow negotiations.

March 24, 2015
by naiads 2 Comments

Whatcom Water Insanity Part 1: Lynden Water Stealing & Milk as “Foreign Water”

Nooksack Watershed Map (Dept of Ecology)

This is a story, the first of many, about water resource issues in Whatcom County. Whatcom County is well known as a place where a lot of people and farms and companies steal water. One of the water thieves is the City of Lynden.

Bald eagles fishing for salmon in the Nooksack River (Photo Seattle Times)

By water thieves, we mean farms, dairies, cities and anyone else who takes water out of the Nooksack River (including tributaries and connected groundwater), without a water right. This is wrong – it is stealing. It hurts the river and its salmon and steelhead and the shellfish beds in the bay. However, for decades, rather than bring enforcement action to halt water stealing in Whatcom County, the state agency in charge – the Department of Ecology – has hesitated, stumbled, apologized and pretty much done everything it can to avoid dealing with the problem.

With respect to Lynden, the city’s latest plan to stop stealing water is not to actually stop stealing, or to adopt aggressive water conservation, or to purchase and transfer existing rights, or any other water budget neutral solution. No, instead Lynden wants credit for the wastewater that the Darigold powdered milk plant is already putting into the Nooksack River a mile downstream of the City’s water treatment plant.

The problem with this scheme, however, is that it too is illegal.

Darigold doesn’t own its wastewater, and can’t transfer it to the City.
The wastewater is already in the river so the “offset” is illusory.
Even if it weren’t illusory, there’s still a mile of river (and salmon habitat) that would be de-watered.
The wastewater from the Darigold plant is not “foreign water” (see below for more on the amazing concept that milk is foreign water).

Given all this illegality, Lynden is now asking the WA Legislature to make it all good. And amazingly, the Legislature is complying. Senate Bill 5298 sailed through the Senate, and was heard in the House Ag & Natural Resources Committee on March 24, 2015 – and could pass out of the committee and on to a floor vote sometime soon.

So, just to review. A city that has been stealing water and harming flows in the Nooksack River has asked the Legislature to change the law to allow it to get credit for wastewater that is already being put into the River. And the Legislature is prepared to do it.

So, why is water stealing such a big deal?

Redline – WA state’s take on flows to protect Nooksack River instream values Greenline – Flows actually need to protect instream values.

First, there’s the river. In 1985, the Department of Ecology adopted an instream flow rule for the Nooksack River. However, these instream flows were a compromise and not adequate to protect fisheries. The graph at right shows what flows are needed (green line) versus what flows are protected under the law (red line).

Nooksack River percent days flows unmet (ECY 2015)

Fascinating graph showing how often the rule-based instream flows are not met throughout the year.

And that red line is not reality. The flows that are supposed to be protected in the instream flow rule are in fact often not achieved. So water stealing by Lynden (and others) really does hurt the river and its fish.

Second, the Legislature is rewarding a scofflaw. And this is really bad policy, because there are quite a lot of water thieves in Washington – in Whatcom County and elsewhere. If the Leg gives in on this one, where does it end?

Third, is the “foreign water” concept – the idea that the mitigation water from the Darigold plant is adding new water to the Nooksack River. In western water law “foreign water” means water that is imported from another watershed.

But here, the Department of Ecology has determined that Darigold wastewater is foreign because it comes from the cows. In other words, the cows drink Nooksack River water, and they produce milk. But once the milk comes out of the cow, it’s foreign water.

Once you’ve had a good laugh about that, feel free to call your legislator and ask that they stop rewarding water thieves, including the City of Lynden, and oppose SSB 5298.

More laughs and lots of good information about water and land use in Whatcom County can be found at Get Whatcom Planning.

February 22, 2015
by naiads Leave a comment

Grand Coulee Fish Passage Getting Attention

The idea of salmon above Grand Coulee dam is getting a lot of attention these days, both artistic and scientific. Naiads readers are encouraged take two actions: (1) view the movie and (2) comment on the proposal. Details below.

Naiads has previously reported on the intrepid Columbia River paddlers who traveled from Astoria, Oregon to Canal Flats, B.C. in the summer and fall of 2014. They have just released a new film that examines the potential for salmon restoration through the lens of their journey. The 35-minute movie, Treaty Talks: Paddling Up the Columbia River for People and Salmon, takes the viewer up the river and into the lives of the Spokane and Colville Tribes kids who carved the dugout canoes, along with many others who dream about and are dedicated to salmon restoration.

The Columbia Canoe Journey was undertaken by Voyages of Rediscovery, aka Adam Wicks-Arshack, Xander Demetrios, John Malik, and Jay Callahan. It’s an inspiring and beautiful film.

The film was sponsored by Upper Columbia United Tribes or UCUT, a consortium of five tribes in the Upper Columbia basin that serves to protect and restore the natural resources of those tribes – covering 2 million acres and lands and waters located within the states of Washington and Idaho.

UCUT has been instrumental in promoting a serious policy discussion about salmon reintroduction above Grand Coulee dam. See related posts on this blog discussing the Columbia River Treaty recommendations and other documents.

UCUT has now released for public comment the Phase 1 Plan for the Upper Columbia Basin Fish Passage and Reintroduction Project. Comments on the plan are welcome and due to UCUT on February 27, 2015. It’s a well-constructed plan that will

UCUT’s Phase 1 Plan follows on the NW Power & Conservation Council’s October 2014 adoption of the Columbia Basin Fish & Wildlife Program. The program plan calls for a phased approach to study and implement reintroduction of anadromous fish (salmon, steelhead, eels and other species) to areas where fish migrated historically, but which are now blocked due to dams and etc.

January 7, 2015
by naiads Leave a comment

Part 4: New Diversions & Dams in the Alpine Lakes Wilderness?

Part 4: The Alpine Lakes Automation-Storage Project

Enchantment Zone Icicle ID Instream Flow Options Report (7-25-14)

Alpine Lakes Wilderness region where automation and new storage is proposed.

This is the fourth of a four-part series regarding proposals to re-build a dam and increase water diversions from as many as seven lakes in the Enchantment Lakes region of the Alpine Lakes Wilderness. Part 1 describes the genesis and functioning of the Icicle Work Group, the entity which is proposing the water projects. Part 2 examines the Eightmile Lake Restoration-storage project, and Part 3 examines the Upper Klonaqua Lake Pipeline proposal.

In a nutshell, the Department of Ecology’s Office of the Columbia River has funded Chelan County to investigate how to solve water problems in the Wenatchee River watershed. The primary focus of the effort is to increase water storage and diversions from seven lakes in the Enchantment Lakes region of the Alpines Lakes Wilderness.

This article discusses the proposal to automate existing diversions from the Alpine Lakes to increase efficiency and potentially drain the lakes.

The IPID and Hatchery diversion methods are primitive: drain holes and gates at the lakes are manually opened and closed at the beginning and end of the irrigation season by IPID and Hatchery staff who hike into the Wilderness.

Icicle Subbasin Vicinity Plan (Aspect Consulting Nov. 2012)

Icicle Creek Subbasin Vicinity Map (Aspect Consulting Nov. 2012). This map shows lakes proposed for storage and added diversions, and existing diversion points on Icicle Creek.

The Alpine Lakes Automation/Optimization Appraisal Study (A/O Study) evaluates the potential to install telemetry equipment at each of the seven lakes to allow IPID and the Hatchery to remotely control the water release structures from their offices. Rather than uncontrolled drainage, automation would allow the water users to fine tune the quantities of water they remove from the lakes to meet both consumptive use and instream flow requirements.

The original concept for the study was to evaluate more efficient use of water and refill rates.

However, the scope of the A/O Study has expanded to include analysis of increasing storage at Snow and Eightmile Lakes. The study evaluates increasing storage at Upper & Lower Snow Lakes by 5 feet and drawing down Lower Snow by an additional 3 feet. The study also evaluates two options at Eightmile Lake. The first involves rebuilding the dam to its original height (adding 4 feet to current pool); the second adds another 1 foot above that. Both options also evaluate lowering the Eightmile Lake outlet by 19 to 22 feet below current drawdown levels.

The A/O Study then evaluates the water supply opportunities should six of the seven IPID/LNFH lakes be fully drained each year. (At present, IPID diverts from the four lakes to which it holds rights on a rotating basis.)

The proposals to install automation equipment, manipulate lake levels, and increase diversions from the lakes seem likely to require approvals from the U.S. Forest Service (which manages the Alpine Lakes Wilderness) and the Department of Ecology (which manages water rights). To date neither agency has indicated their positions regarding these proposals, although as discussed in Part 1 of this series, Ecology’s Office of the Columbia River has provided substantial funding to study new dams and diversions from the Enchantment Lakes.

January 7, 2015
by naiads Leave a comment

Part 3: New Dams & Diversions in the Alpine Lakes Wilderness?

Part 3: The Upper Klonaqua Lake Pipeline Proposal

Upper Klonaqua Lake (Aspect Consulting, Nov. 2014)

This is the third of a four-part series regarding proposals to re-build a dam and increase water diversions from as many as seven lakes in the Enchantment Lakes region of the Alpine Lakes Wilderness. Part 1 describes the genesis and functioning of the Icicle Work Group, the entity which is proposing the water projects. Part 2 examines the Eightmile Lake Restoration-Storage project, and Part 4 examines the Alpine Lakes Automation-Storage project.

This article discusses the preliminary proposal to divert water out of Upper Klonaqua Lake. The only study for this project released to date is the draft Bathymetry and Topographic Survey of Upper Klonaqua Lake and Conceptual Release Options (Aspect Consulting, Nov. 2014).

Topo map of Klonaqua Lakes

As with all of the Alpine Lakes proposals, the search is on for new water to supply downstream uses in the Icicle Creek and Wenatchee Valley.

The Upper Klonaqua Lake concept involves installing a siphon or pump or blasting a tunnel from Lower Klonaqua into Upper Klonaqua Lake, draining it into Lower Klonaqua Lake, and then allocating that water for uses further down in the watershed.

Upper-Klonaqua-Lake-Conceptual-Review Graphics (Nov. 2014)

Upper Klonaqua Lake Bathymetry Synopsis (Aspect Consulting, Nov. 2014) Draft

In September 2014, Gravity Consulting LLC conducted a study of the depth and contours of Upper Klonaqua Lake.

As discussed in Parts 1 and 2 of this series, the Icicle and Peshastin Irrigation Districts (IPID) hold some form of water rights and easements for several Alpine Lakes, including the Upper and Lower Klonaqua Lakes. IPID has never accessed water from Upper Klonaqua, and according to the report, has used only 1,600 acre-feet of its 1926 2500 acre-foot water right from Lower Klonaqua Lake.

Nonetheless, the Upper Klonaqua Study evaluates the natural storage capacity of Upper Klonaqua, including how much water could be obtained by drawing down the lake.

Issues with this proposal include that any new water project in a wilderness area would require approval of the U.S. Forest Service (and, according to the Wilderness Act of 1964, possibly the U.S. President).

And, because this proposal would involve diverting increased quantities of water from the Klonaqua Lakes, the Department of Ecology would have to evaluate relinquishment, and issue new water rights to accomplish the goal.

To date, neither the Forest Service nor the Department of Ecology have expressed opinions about the viability of these proposals.

Naiads

Water: law/policy/politics/ethics/art/science

Category Archives: Salmon

Hirst: The Bigger Picture

New Report Debunks Washington’s Dam-Building Program

Alpine Lakes Wilderness Comment Deadline: May 11

Nooksack Water Thievery Redux

Drought Conundrums

The Tale of the Nooksack Nine, or, the Rewards of Water Thievery

Whatcom Water Insanity Part 1: Lynden Water Stealing & Milk as “Foreign Water”

Grand Coulee Fish Passage Getting Attention

Part 4: New Diversions & Dams in the Alpine Lakes Wilderness?

Part 3: New Dams & Diversions in the Alpine Lakes Wilderness?

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