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Battle Lines Form Over Washington Water Withdrawals by Mike O'Bryant Columbia Basin Bulletin - November 17, 2000

Saying that rivers already have too little water to meet flow targets for salmon migration, environmental groups petitioned the Washington Department of Ecology to renew a moratorium on issuing water rights permits on the Columbia and Snake rivers and their tributaries.

The Center for Environmental Law and Policy, American Rivers, Friends of the Earth and WaterWatch of Oregon filed the petition Wednesday asking Ecology to close the Columbia River to additional water withdrawals. They say water is already over-allocated and any more withdrawals would damage efforts for salmon recovery.

This is only the latest water battle in the last several months in which Ecology has been involved. The City of Pasco and the Columbia-Snake Irrigators Association filed suit Oct. 31 to force Ecology to move faster on pending water rights applications. But the lawsuit also calls on Ecology to challenge the National Marine Fisheries Service' "no net loss" water policy contained in its 1995 biological opinion of the federal Columbia River hydro system.

Darryl Olson of the Irrigators Association said the federal policy is the real reason Ecology is not approving applications and that "abrogates" the state's right to govern water withdrawals within its boundaries.

Earlier this summer, Ecology nearly approved a new water right for the cities of Pasco, Kennewick, Richland and West Richland, but the Center for Environmental Law and Policy (CELP) challenged the filing and Ecology eventually denied the permit, but it did so because it found the permit application no longer valid. That decision is also in court.

Ecology spokeswoman, Mary Getchell, said the petition and the irrigator lawsuit conflict and that Ecology is in the middle of it all.

"The lawsuit asks Ecology to process water rights permits, while the petition asks for a moratorium," Getchell said. She said there is a tremendous amount of gridlock when it comes to what to do about water management. "The water laws were established early last century so the state would develop water use. Now the state has developed that use and we need new laws for the new century."

Kristie Carevich, CELP's associate attorney, said the petition is the first step before considering a lawsuit. "Ecology is responsible for the state's water resource program," she said. "We're just asking them to do what they already have authority to do."

"The DOE is not a water-vending machine. We have to consider the impact new water appropriations will have on existing water rights, the public interest and salmon survival", said Carevich.

Ecology has authority to close the Columbia River to further appropriation under the Water Resources Act of 1971, the CELP petition says. That means Ecology has the authority to set in-stream flows to protect fish and wildlife and it also has the authority to close streams to further appropriation.

In 1992, Washington's legislature placed a moratorium on granting new water permits on the Columbia River, but lifted the ban in 1997. Since then, Ecology has not granted a permit and CELP wants to reinstate the ban before it does. It's an administrative request, Carevich said.

It may be administrative, but Getchell said it's not so easy. First, Ecology has 60 days to respond to the petition. It would then have to consult with the Legislature before beginning a rulemaking process. Rulemaking would require a public process with public workshops in each county affected by the change, she said. And, if there were substantial changes from the first proposal to the final, it would have to open that to further hearings.

The environmental groups are filing the petition because the Columbia River water is already over-appropriated and not enough water remains in-stream to meet the needs of salmon and steelhead listed under the federal Endangered Species Act, the petition says. Current water rights and claims already account for 40 percent of the river's flow, it says, citing a Bureau of Reclamation study. But, if Washington began granting new water rights now, it would also conflict with steps others in the region are taking to make sure there is enough water in rivers for listed fish.

"While federal agencies, the State of Idaho, and individual family farmers and water users have been working to augment flows, the State of Washington sits ready to permit further water use -- another 100 plus applications for new water from the Columbia are pending before Ecology right now," the petition says.

"Since 1993, millions of dollars have been spent on behalf of the federal government, Canada and Idaho," Carevich said. "All to augment flows in the river and help threatened and endangered species. Idaho even has a partial moratorium on new permits. The question is whether Ecology is going to step out of line on these efforts?"

The lawsuit by Pasco and the Irrigators Association doesn't ask that Ecology rule on all 100 plus applications, only that it begin processing permits from the John Day and McNary Dam pools, which number two -- permits for the City of Pasco and SunHeaven Farms, which is represented by the Irrigators Association.

"The key problem is NMFS no net loss policy," said Olson. "We are forcing the state to confront NMFS. We feel if they do, NMFS will back down."

In 1978, the state designated a certain amount of water for future rights in the John Day and McNary pools and it has the right to issue permits, according to Olson. If Ecology chooses not to approve permits because of NMFS' spring and summer flow policy and targets, then that "effectively abrogates state laws," he said. Plus, the flow targets are "garbage." They can't be met in spring and summer with or without the current withdrawals during a low-flow year, and they can't even be met during the summer in an average year, he said. Besides, the biology isn't there to support augmentation, which is the "most expensive water resource program on the mainstem."

"The question is who controls the water -- the state or the feds?" Olson asked. "You've got to take on NMFS over control and management of water. You have to start processing water rights where there is a supply."

It's difficult to tell how much Ecology's position differs from Olson's. Olson believes the two are close and Getchell said that in its comments on NMFS' draft 2000 BiOp, Ecology expressed its concern about the "unsettled science around in-stream flow" and about flow augmentation. However, she said, Ecology took "no absolute position."

Whether enough supply of water is available for new withdrawals is one of the issues. Ecology was to have collected data during the 1992 to 1997 moratorium so that it could "make a sound decision on pending applications. These studies should have entailed an assessment of existing water rights, the impact of current water use on river flows, and whether any further water was available for appropriation without impairing senior rights or harming listed species. Yet Ecology never completed any studies assessing "the extent of current water use and effect on flows, or whether further water use could be permitted," according to CELP's white paper.

And, because it doesn't know how much water is available, it cannot meet a four-part test, which is a part of the water code, in permitting more water withdrawals, alleges CELP. When granting a water right, there must be proof that the water is for a beneficial use, that water is available, that granting the right would not impair an existing right and that granting it would not be detrimental to the public interest.

"More-than-sufficient information now exists to show that permitting further water use from the Columbia System will impair existing rights, harm the public interest, thwart ongoing salmon recovery efforts, and represent poor and inconsistent management of the State's waters," CELP concludes.

Link information:
Center for Environmental Law and Policy: www.celp.org
Washington Department of Ecology: www.ecy.wa.gov
CELP White Paper: www.celp.org