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

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Water Law News: Juliana v. United States

climate-change-graphic-hand-holding-globeIt’s been a difficult week for people who care about climate change. It appears that U.S. climate policy will soon reverse course, and that the administration-elect may steal the planet from future generations. It is therefore very welcome news to see a court squarely ruling that U.S. citizens – children in particular – have a fundamental constitutional right to a planet that is capable of supporting human life.

Our Children’s Trust is a non-profit organization in Eugene, Oregon, that has been bringing climate change litigation around the nation. In these lawsuits, children are the plaintiffs and they are suing the government for failure to take action to secure a healthy environment for their future.   The U.S. Constitutional right to “life, liberty and happiness,” and the Public Trust Doctrine are central arguments in these lawsuits.

One such lawsuit is Kelsey Juliana v. United States, and is pending in the Oregon federal court, Judge Ann Aiken presiding.   Yesterday Judge Aiken made a major ruling in the case.

Juliana v. U.S. is an important case. It’s a lawsuit brought by 21 children against the President, the Council on Environmental Quality, the Office of Management and Budget, the Office of Science and Technology Policy, the Departments of Interior, Energy, Agriculture, Transportation, Commerce, Defense, and State, and the Environmental Protection Agency. The National Assn. of Manufacturers, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute have intervened on the side of the federal government.

The Juliana plaintiffs allege claims that get at the heart of federal climate policy and actions. The lawsuit challenges

decisions like whether and to what extent to regulate CO2 emissions from power plants and vehicles, whether to permit fossil fuel extraction and development to take place on federal lands, how much to charge for use of those lands, whether to give tax breaks to the fossil fuel industry, whether to subsidize or directly fund that industry, whether to fund the construction of fossil fuel infrastructure such as natural gas pipelines at home and abroad, whether to permit the import and export of fossil fuels from and to the United States, and whether to authorize new marine coal terminal projects. Plaintiffs assert defendants’ decisions on these topics have substantially caused the planet to warm and the oceans to rise.

The Juliana lawsuit is at the first stage of the proceedings. The U.S. defendants and intervenors filed a motion to dismiss, arguing that the plaintiffs have failed to state the kind of claim that the court can decide. Because the Court denied the motion to dismiss, the case will now proceed to trial.

First, the Court held that the Juliana claims are not simply “political questions” that courts should refrain from deciding. Rather, the plaintiffs

ask the Court to declare the United States’ current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of the United States CO2 emissions, and use that inventory to ‘prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.’

The Court ruled that plaintiffs have standing to sue based on specific harms they are experiencing as a result of climate change. One plaintiff has asthma that is aggravated by forest fires. Another’s family had to install an irrigation system because of drought. One of the plaintiffs lives in Louisiana and her home was inundated in the recent floods in that area.

On the merits, Judge Aiken ruled that citizens have a “right to a climate that is capable of sustaining human life” and that this is a fundamental due process right that emanates from the U.S. Constitution. “A stable climate system is quite literally the foundation of society, without which there would be neither civilization or progress.”   The Court ruled that where a lawsuit alleges that:

Governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.

Finally, with respect to the Public Trust Doctrine, Judge Aiken first reviewed the history of the doctrine, from ancient Roman law to the present. The Institutes of Justinian first codified the Public Trust in 530 CE (AD):

The following things are by natural law common to all: the air, running water, the sea, and consequently the seashore.

Government has a duty to protect these common resources for the benefit of future generations.

With respect to core resources, the sovereign’s public trust obligations prevent it from depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens. . . . The [] trust operates according to basic trust principles, which impose upon the trustee a fiduciary duty to protect the trust property from damage or destruction. The trustee owes this duty equally to both current and future beneficiaries of the trust.’

The Juliana plaintiffs asked the Court to recognize that the Public Trust Doctrine protects the atmosphere – the first natural resource profoundly affected by climate change. The Court ruled that it need not reach that question, because climate change is clearly affecting a more traditional public trust resource, the territorial seas of the United States.

Time and again, the Supreme Court has held that the public trust doctrine applies to lands beneath tidal waters. . . . [U.S.] authority over the [sea] can no more be abdicated than any of the other great powers of the Federal Government. . . . Because a number of the plaintiffs’ injuries relate to the effects of ocean acidification and rising ocean temperatures, they have adequately alleged harm to public trust assets.

In declining to rule on the more novel question of an atmospheric trust, the Court noted that there is authority for the idea that the Public Trust Doctrine applies to protect the atmosphere. One such authority is the Nov. 2015 decision of King County Judge Hollis Hill, who ruled in case brought by Seattle-area children (Foster v. WA Dept. of Ecology) that:

It misses the point to mechanically rely on what has been identified as a public trust asset in the past because ‘the navigable waters and the atmosphere are intertwined and to argue a separation of the two, or to argue that [greenhouse gas] emissions do not affect navigable waters is nonsensical.’

Judge Aiken also cited a recent ruling from the Pennsylvania court (Robinson Township v. Pennsylvania) that:

The concept of public natural resources includes not only state-owned lands, waterways, and mineral reserves, but also resources that implicate the public interest, such as ambient air, surface and ground water, wild flora and fauna (including fish) that are outside the scope of purely private property.

The judge went on to rule that the Public Trust Doctrine applies to the federal government, that it is not displaced by federal statutes, and that rights under the public trust are enforceable by federal courts. The judge concluded:

This action is of a different order than the typical environmental case. It alleges that defendants’ actions and inactions . . . have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty. . . .

Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it. . . .

“A strong and independent judiciary is the cornerstone of our liberties.” [Quoting Sen. Mark Hatfield]. Even when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government.

Trial will likely be scheduled for 2017.

WRIA 1 Map (Dept of Ecology)


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Blockbuster Court Decision Protects Instream Flows and May Slow Rural Sprawl

Nooksack watershed (WRIA 1) map (Dept. of Ecology)

In 1985, the Department of Ecology adopted an instream flow rule for the Nooksack watershed in Whatcom County.  The rule establishes instream flows for 28 tributaries or points along the mainstem of the Nooksack River.  The rule also establishes partial or full closures of about 50 rivers, streams, and lakes throughout Whatcom County, meaning that new water rights can no longer be appropriated for part or all of the year where these waterbodies are closed.

Nooksack River percent days flows unmet (ECY 2015)Because of these closures, the Department of Ecology no longer issues water rights in Whatcom County unless those rights are conditioned to be interrupted when instream flows are not met.  This happens often in the Nooksack watershed.*  For example, the graph at left shows that instream flows on the mainstem of the Nooksack River are not met up to 80% of the time during summer months.  This low flow problem is evident in many of the tributaries in the watershed (and throughout the state, as discussed below).

Despite these low flow problems and stream closures, Whatcom County has for many years issued building permits for new rural development that relies on permit exempt wells for water supply.  It has long been understood that groundwater is connected to surface waters in the basin, and that pumping from wells captures water that would otherwise discharge to the Nooksack River and its tributaries.  This hydraulic connection between ground and surface waters has important ecological consequences because groundwater inputs create cool water refugia in streams and rivers for endangered salmon and other aquatic species.   Moreover, as climate change alters stream temperatures, groundwater inputs become even more important.  Despite an enormous amount of scientific data showing that groundwater connects to and enhances surface waters, the County did not evaluate the impact of is rural growth practices on Nooksack instream flows.

Whatcom County is required to prepare a comprehensive plan and zoning regulations under the Growth Management Act (GMA).  The GMA contains several provisos that require counties to administer their land use laws in a way that protects water resources.**  In a 2011 case involving Kittitas County, the Washington Supreme Court held that counties must ensure that water is both physically and legally available when implementing land use laws that will result in development that relies on permit exempt wells for water supply.

On October 6, 2016, the Washington Supreme Court followed up the Kittitas County decision, ruling in Whatcom County vs. Growth Management Hearings Board (also known as the “Hirst” case) that Whatcom County’s land use laws do not fulfill GMA requirements to protect water resources.  Instream flow rules represent water rights for the river that enjoy protection from more recent water diversions and withdrawals, such as those allowed under Whatcom County’s comprehensive land use plan and zoning regulations.  Such withdrawals cause impairment of instream flows that is forbidden under Washington law.

The Court further held that, when issuing building permits that plan to rely on permit exempt wells for water supply, it does not matter that the Department of Ecology has not closed a waterbody by instream flow rule.  Ecology’s inaction cannot serve as a basis for counties to evade their duty to protect water resources and uphold water resource laws.  As discussed below, this is a critical point given that a number of Washington’s instream flow rules are outdated and do not reflect the status of water availability.

wa-instream-flow-map-april-2015

Washington Instream Flow Rules (Dept. of Ecology April 2015)

As shown in the map at right, Ecology has adopted instream flows in about half the watersheds in Washington.  Many of the streams and rivers protected under these rules are not meeting their designated instream flows, especially during summer months.  However, with few exceptions, most counties do not evaluate whether rural development that is reliant on permit exempt wells is causing depletion of instream flows.  Many counties in Washington are presently issuing building permits that are in direct contradiction to the requirements set forth in the Whatcom County and Kittitas County decisions.  (Real estate purchasers, beware.)

Hue and cry is expected from the development community and local land use agencies regarding the Whatcom County decision.  The Court’s ruling calls into question existing practices of many counties that are doing exactly what the Court held illegal :  issuing building permits without proper analysis of water availability.   County land use practices are causing impairment of instream flows throughout the state.

Exempt well growth in Mason County (NWIFC 2016)

The use of exempt wells to fuel Washington’s rural sprawl has been going on since at least the real estate boom of the early 1990’s, much to the detriment of the state’s rivers and streams and the fish that need adequate flow for survival.  A new report from the Northwest Indian Fisheries Commission, 2016 State of Our Watersheds, documents how permit exempt wells are directly harming treaty salmon fisheries in multiple watersheds in western Washington.  As an example, 259 exempt wells were drilled in the Squaxin Island Tribe’s territories between 2010 and 2104 (adding to a total of nearly 6,000 such wells in the basin), damaging important coho and chum fisheries in Johns Creek, where the instream flow rule was adopted set in 1984.

little-spokane-river-water-well-logs-1922-2008A Spokane County report documents that, in the Little Spokane River watershed, 8,900 exempt wells were drilled between 1976 and 2008, after the LSR instream flow rule was adopted, even though the river does not meet instream flows about 80% of the time.  In fact, LSR surface water rights are frequently ordered to curtail in summer months, thus elevating junior permit exempt wells over senior out-of-stream water rights, as well as the regulatory instream flows.

These are but two examples of situations that are virtually identical to Whatcom County.  In reality, this problem is proliferating all over the state.

The Court recognized that instream flows set by rule are protected as senior water rights, but held also that counties cannot rely on these rules to determine legal water availability.  The Court’s decision on this point is important, because Washington’s instream flow regulations are woefully out of date.  In the 1970’s and early 80’s the methods for identifying the quantities of water needed to protect instream values was very crude, the science of hydraulic continuity was not fully understood, and the problem of inchoate (paper) water rights was nowhere on the radar screen, nor were the treaty-based instream water rights of Washington’s tribes.   Instream flow rules are simply not a reliable indicator of how much water is in a stream or aquifer, and how much is available for new appropriations, including exempt wells.

For many years, there has been wholesale failure by the Department of Ecology, state lawmakers, and local authorities to rein in uncontrolled use of exempt wells.  State economic policy has promoted growth at any cost, causing great harm to Washington’s waterways.  By failing to step up and control groundwater use, the state and counties have left themselves open to lawsuits and adverse court decisions.  This trend will continue until a more enlightened approach to water management prevails.

Fundamentally, water managers must recognize that Washington’s water resources were over-appropriated many years ago.  We have come to the end of the water frontier.  Indeed, with climate change baying at the door, we must find ways to use less water and restore water to streams and aquifers that are even now in sharp decline.  A paradigm shift is needed and, with the help of the Washington Supreme Court, is getting underway.

Here are a few pertinent quotes from the Court’s decision in Whatcom County vs. WWGMHB (Oct. 6, 2016):

The GMA places an independent responsibility to ensure water availability on counties, not on Ecology. To the extent that there is a conflict between the GMA and the Nooksack Rule, the later-enacted GMA controls. Slip Op. at 10.

The GMA requires that an applicant for a building permit for a single family residence or a development must produce proof that water is both legally available and actually available. But [Whatcom] County does not require any showing that water is available for a building permit when the applicant is relying on permit-exempt water appropriation. This failure by the County is the crux of this case. Slip Op. at 19.

The Board found that [Whatcom County’s land use] provisions result in water withdrawals from closed basins and senior instream flows – flows that the record indicated drop below the minimum levels 100 days out of the year. The Board properly held that this conflicts with the requirement placed on counties to protect water availability under the GMA, as well as our holding in Postema, 142 Wn.2d 68.  Slip Op. at 25.

Counties may not rely on Ecology’s inaction in failing to close a basin as a determination that water is presumptively available for appropriation. Such inaction fails to provide any assurance that a new permit-exempt well will not infringe on senior water rights, and thus fails to satisfy the obligation the GMA places on counties to ensure that water is legally available before issuing a building permit.  Slip Op. at 34, note 13.

 

_______________

*Naiads has previously reported on Ecology’s shocking decision to issue interruptible water rights to illegal water users in the Nooksack watershed.  See our posts: The Tale of the Nooksack Nine and Nooksack Water Thievery Redux.

**For example, the GMA establishes a goal to “protect the environment and enhance the state’s high quality of life, including air and water quality, and the availability of water.”  RCW 36.70A.020(10). Comprehensive plans must include a land use element that “shall provide for protection of the quality and quantity of groundwater used for public water supplies.”  RCW 36.70A.070(1).  The rural element of comprehensive plans shall protect “critical areas, as provided in RCW 36.70A.060, and surface water and groundwater resources.”  RCW 36.70A.070(5)(c)(iv).  Applicants for building and subdivision permits must demonstrate adequate water supply for their developments.  RCW 19.27.097 and 58.17.110.

colchuck-lake (USDA-FS)


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Alpine Lakes Wilderness Comment Deadline: May 11

colchuck-lake (USDA-FS)

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.

 

Eightmile Lake nonfunctioning dam Sept 15 2013 by Karl Forsgaard


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Icicle Instream Illusions

The Icicle Work Group, about which this blog has posted much, (see below*), has proposed an “Icicle Strategy” for achieving goals to manage water in the Icicle Creek watershed, which originates in the Alpine Lakes Wilderness and feeds into the Wenatchee River.   This quid-pro-quo water management proposal would involve manipulating water levels and building a new dam at the popular Eightmile Lake in the Wilderness.   The alleged benefit is that the water developed by these activities would be used to improve instream flows in Icicle Creek.

We say “alleged benefit,” because if you look at the fine print, you’ll see that improvements to Icicle Creek instream flows are not guaranteed.   The trade-off between harming Alpine Lakes Wilderness and improving Icicle Creek is a smoke and mirrors proposition.  Wilderness and river advocates should not be fooled.

The charts below tell the story.   The blue, red and green bars indicate that of the 77 cubic feet per second (cfs) that the Icicle Strategy would add to Icicle Creek, only 22 cfs is actually guaranteed to be there, while 55 cfs is subordinate or subject to speculation (ie, 20 cfs may or may not be provided by the Leavenworth National Fish Hatchery at some unknown point in the future).

Icicle Integrated Projects 10-02-2015 Graphics (2)

Chart produced by Icicle Work (2015).  Click here for larger version.

Also of interest is that the four entities that divert water from Icicle Creek should be required to use water more efficiently and prevent harm to the instream habitat of threatened species (steelhead and bull trout).  This is already required pursuant to state water laws and the federal Endangered Species Act, but these laws are not being enforced.   The benefit to Icicle Creek provided by the Icicle Strategy is illusory.

The four Icicle diverters are Icicle-Peshastin Irrigation District (IPID), Leavenworth National Fish Hatchery, Cascade Orchard Irrigation Co., and City of Leavenworth.    IPID claims it has a legal right to take more water from the various Alpine Lakes, but this is not true.  To the extent IPID has water rights, whatever it hasn’t used has been relinquished.  Use it or lose it – that’s the rule of western water law.

The real purpose of the Icicle Strategy is to take more water out of the Alpine Lakes to serve urban and suburban growth and sprawl in the City of Leavenworth and other communities in the Wenatchee Valley.   For background, see articles linked below.

The Icicle Work Group is holding public meetings regarding its proposed strategy:

  • Seattle, March 30 at 7:00 pm at the Phinney Center
  • Leavenworth, April 20 from 4-8 pm at the Leavenworth Fire Hall
  • Public comments can be sent to mike.kaputa@co.chelan.wa.us, deadline May 11, 2016.

*For more info about the Icicle Work Group see the following posts:

New Dams & Diversion In the Alpine Lakes Wilderness?

Icicle Work Group – An Alternative View discusses the sham process by which the Icicle water management strategy is being created.

Dismantling the Enchantment Lakes by Pick & Shovel discusses the Icicle-Peshastin Irrigation District’s rights to divert water in the Alpine Lakes Wilderness.

Eightmile Lake nonfunctioning dam Sept 15 2013 by Karl Forsgaard


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Icicle Work Group: An Alternative View

This article was published in the January-February 2016 newsletter of the Washington Chapter of the American Water Resources Association.  This version contains additional graphics and links to websites and documents. 

Introduction

Washington AWRA members were introduced to the Icicle Creek work group process at the October 2015 dinner meeting and in a follow-up newsletter article. Chelan County Natural Resources Director Mike Kaputa presented on the costly (in both time and money) process that various government agencies, water users, tribes and environmental groups are undertaking with the ultimate goal of diverting more water out of the already over-appropriated Icicle Creek watershed. This article offers a different viewpoint of the Icicle Work Group’s process and goals.

The Icicle Work Group or IWG was established and funded by the Department of Ecology’s Office of the Columbia River (OCR) in December 2012 as a “collaborative process.” The IWG spent a year developing operating procedures based on consensus decision making, along with substantive goals that focused on environmental improvements and developing new water supply while adhering to state and federal laws.

Icicle Subbasin Vicinity Plan (Aspect Consulting Nov. 2012)

Figure 1. Icicle Creek Subbasin Vicinity Map (Aspect Consulting Nov. 2012)

The IWG process targets an already over-appropriated water system. Icicle Creek drains a portion of the Alpine Lakes Wilderness area and discharges into the Wenatchee River near downtown Leavenworth. See Fig. 1.  Four entities divert about 150 cfs from the Icicle upstream of the Leavenworth Fish Hatchery; two-thirds of that water is removed completely from the Icicle watershed to serve orchards in the Wenatchee Valley. Flows in some reaches of Icicle Creek are inadequate to support Endangered Species Act (ESA) listed bull trout and steelhead.

Before launching into particulars, a disclosure is appropriate.   On behalf of the Center for Environmental Law & Policy, I was invited to serve on the IWG and did so (along with CELP colleagues) from the outset. At the first meeting of the IWG I voiced CELP’s objection to a central element of the IWG’s strategy:   artificially increased water storage in the Enchantment Lakes, in the Alpine Lakes Wilderness Area.   In February 2015, concerned that the public was not being apprised of IWG proposals, I published articles about the Alpine Lakes project at www.naiads.wordpress.com (“New Dams & Diversions in the Alpine Lakes Wilderness?”). In June, the IWG proposed to alter its decision process from consensus to majority vote, and adopt a rule that members must screen their opinions with the IWG before publicly airing them. CELP resigned from the IWG when these amended procedures were adopted in July 2015.

Background Conflicts

As with many water resource problems, there is a long back story to water management in Icicle Creek. Four different conflicts inform the work of the Icicle Work Group.

This first conflict begins with the building of Grand Coulee dam without fish passage, an egregious injustice to tribes and the public that has yet to be rectified. To partially mitigate, the U.S. Bureau of Reclamation in 1938 built the Leavenworth National Fish Hatchery. The Bureau still owns and funds the Hatchery, which is operated by the U.S. Fish and Wildlife Service to produce chinook and coho salmon to meet federal trust obligations to the Confederated Colville Tribes and Yakama Nation. The Leavenworth Hatchery is a dilapidated facility suffering from decades of deferred maintenance, including relating to its water supply system. The Hatchery also blocks passage of ESA-listed steelhead and bull trout to the upper area of Icicle Creek – no small irony given that the USFWS is one of two federal agencies in charge of recovering endangered species.

In addition to its physical infrastructure problems, the Hatchery operates without proper permits and conditions. Wild Fish Conservancy and CELP have brought a number of lawsuits against the Hatchery, including three ongoing cases relating to Endangered Species Act, state 401 Certification, and federal Clean Water Act violations.

A second background issue involves a lawsuit between the City of Leavenworth and the Department of Ecology.   In sum, in processing a water right change application in 1995, Ecology assigned an annual quantity to one of Leavenworth’s older water rights. Leavenworth did not appeal that quantification at the time, but recently sued Ecology to increase the annual quantity. A Chelan County judge ruled that Ecology’s 1995 quantification was a “tentative determination” that can be re-visited by the courts. The case is on hold in the Court of Appeals, a stay being obtained in 2013 based on Ecology’s promise to establish the Icicle Work Group and find more water for the City. The conflict boils down to 800 acre-feet annually, and Ecology is looking to provide that water via new appropriations out of the Alpine Lakes Wilderness area.

IPID-LNFH Water Rights Chart (Chelan Co. Grant App) (2)

Figure 2. IPID Water Rights (Chelan County)

This relates to the third background issue – the water rights of Icicle Peshastin Irrigation District (IPID) (technically these are two districts that share a manager). IPID holds rights to store and take water from several of the Enchantment Lakes – these rights were grandfathered when the Alpine Lakes Wilderness Area was established in 1976. See Fig. 2.  IPID has installed various structures that control water flow from these lakes (“control” meaning that someone hikes up into the Wilderness in July to turn on the water, and then hikes back up in October to turn it off).

 

Eightmile Lake nonfunctioning dam Sept 15 2013 by Karl Forsgaard

Figure 3. Because of the collapsed dam, Eightmile Lake has long been incapable of storing 2500 acre-feet of water. (Photo courtesy Karl Forsgaard)

When Ecology decided it would rather settle than fight the City’s lawsuit, it began to look at IPID’s wilderness water system as a source for the elusive 800 acre-feet.   One of IPID’s rights is to store water at Eightmile Lake, where the dam structure collapsed so long ago no one remembers when it happened.   See Fig. 3.  If IPID could re-build the dam, and increase the water level of the lake, and if that extra water could be re-allocated to the City – well then, case dismissed and the Chelan County “tentative determination” order vacated.

A final issue involves the Wenatchee River instream flow rule, first adopted in 1983. In 2005, Ecology amended the rule to update instream flows and add reserves to support new water rights in the Wenatchee Valley. These reserves would impair the instream flow established by rule, and are based on “overriding considerations of the public interest” or OCPI, set forth in RCW 90.54.020(3)(a). Alert readers will recall that OCPI reserves are no longer valid following the Supreme Court’s 2013 decision in Swinomish Indian Tribal Community v. Department of Ecology. This effectively squelched the County’s efforts to obtain issuance of new water rights, and has led to (thus far unsuccessful) attempts in the Legislature to revive the Wenatchee reserves.

Wenatchee Peshastin Gage Low Flow Graph

Figure 4. Actual streamflow in the Wenatchee River falls below the rule-based instream flow targets for most of the summer each year. The now invalid reserves would further deplete the Wenatchee River. (Graphic adapted from USGS data)

As an aside, the Wenatchee River and Icicle Creek routinely do not meet the Wenatchee rule’s instream flow targets during summer months.  See Figure 4.  This fact nicely illustrates the Supreme Court’s concerns about reserves impinging on the statutory mandate to preserve flows that support fish, wildlife, recreation and other instream values.

The Icicle Work Group Goals & Projects

With all this in mind, the Icicle Work Group was founded in 2012 as a consensus decision work group. The IWG adopted eight goals that seek both environmental improvements and new out-of-stream water allocations. In 2013, the OCR granted $885,000 to Chelan County to staff IWG with consultants and Ecology, WDFW and Chelan County employees. The IWG also pays $25,000 per year to IPID to fund its manager’s participation. Substantial legislative appropriations were made to support the IWG in the 2015-2017 biennium.

Flow-WUA Chart - IWG IF Comm Presentation 7-20-14

Figure 5. Icicle Work Group Instream Flow Technical Subcommittee recommendations for instream flow in Icicle Creek Reach 4 (adjacent to Leavenworth Fish Hatchery) (2014).

In 2014, the Work Group began to develop “metrics” to meet its goals. Identifying instream flow quantities necessary to meet fisheries needs in Icicle Creek, especially the de-watered reach adjacent to the Leavenworth Hatchery, was one consideration. IWG appointed a technical subcommittee of biologists, which recommended that 250 cfs was needed in order to maintain 100% of habitat for steelhead and bull trout life stages. See Figure 5.

Certain Work Group members however, found these quantities unacceptable. The 250 cfs number was “negotiated” down to 100 cfs in good years, and 60 cfs in drought years.   This would make 80% or less of potential habitat available for ESA-listed fish, a problematic goal by state and federal standards. See “metrics” and Fig. 5.  Some biologists have expressed doubt about the scientific foundations of this compromise, but when questions were raised, the IWG was informed that the decision could not be re-visited.

This process raises fundamental questions about the propriety of agency participation in “collaborative” groups. With consensus, all parties have veto. But IWG rules now require participants to support the metrics and project list. Agency commitment to outcomes in advance of public and environmental review is troubling, especially for regulatory agencies such as Ecology, Washington Department of Fish & Wildlife, the U.S. Forest Service, and NOAA.

Also problematic is the approach to meeting these compromise flows. The current project list identifies only 22 cfs of “guaranteed” instream flow water – the rest would be interruptible. In a bad year, like the summer of 2015, Icicle Creek flows would plummet and temperatures skyrocket, while human users get the water they need.

Proposals to manipulate storage at Eightmile and other Enchantment Lakes, where IPID insists it has the “right” to expand its wilderness water system, are of great concern to the environmental community. The Alpine Lakes Wilderness is a crown jewel of the federal wilderness system and Eightmile Lake is one of its most popular trails. While the IWG has done some outreach, conservation community responses have had zero impact on development of the project list.

Eightmile Lake Easements (Aspect Nov. 2014)

Figure 6. Eightmile Lake Easements do not cover the entirety of the lake. (Aspect Nov. 2014)

Beyond the failure to address public concerns, neither Ecology nor IPID has easements to flood wilderness surrounding the lakes, nor can the U.S. Forest Service give away public lands. See Fig. 6.  Yet expanded storage in the Alpine Lakes is the IWG’s linchpin project – so important that it changed its rules in order to outvote CELP’s viewpoint. Indeed, CELP was directed to stop asking questions about these issues at IWG meetings.

The most expedient way to put 100 cfs into Icicle Creek is to move IPID’s diversion five miles downstream, from the Icicle-Snow Creek confluence to the Wenatchee River. However, IPID’s board voted to prohibit the IWG from considering this option. These actions raise interesting questions about the scope of water entitlements. Is a water user guaranteed their means of diversion, in this case miles of gravity-powered conveyance, that cause substantial environmental impacts?

Ski Hill Lawn 1

Figure 7. No pear trees here. Former orchard lands in the Ski Hill area of Leavenworth have converted to residential, but are still afforded irrigation water duties for their lawns.  (Photo: Naiads, June 2015)

Prior to resigning, CELP proposed that the project list should focus on rigorous conservation rather than new storage. An informal tour of the Leavenworth area in June 2015 produced a photo album of conservation opportunities, including IPID canal-side phreatophytes, orchard over-irrigation, and excessive residential lawn watering.  See Fig. 7.  Municipal demand has declined, and the City does not project significant need for future customers. Indeed, the City recently approved selling water to the Leavenworth Ski Hill for snowmaking in 2016. While the current IWG project list includes some conservation, IWG water users resist meaningful measures.

Upcoming IWG Process

Chelan County’s IWG website does not reveal when or how the IWG plans to move forward. The IWG was on track to begin SEPA scoping in autumn 2015, but when the legislature allocated IWG another $1-2 million for the 2015-2017 biennium, the process slowed. These funds will easily support the IWG battalion of consultants and agency staff for at least two more years.

State and federal coordination over environmental review (SEPA and NEPA) has also been difficult.   One of the consequences of “integrated planning,” i.e., the lumping together of varied projects, is that affected agencies spend large amounts of publicly funded time to iron out procedures, turf conflicts, and other issues.

A few concluding observations.

First, as a matter of law and of biology, instream flows in Icicle Creek must be returned to more normative, historic levels. It is wrong to use legally required flows as a trading chit to obtain new out-of-stream water rights. This is particularly so given that the target sources are the Enchantment Lakes in the Alpine Lakes Wilderness.

Second, the IWG is not a collaborative process. The inability of the Work Group to contend with dissent – and its change in operating procedures to silence particular viewpoints – seriously undermines its legitimacy. Skepticism should be the response when the IWG extols the virtuosity of its group-think process.

Finally, public expenditures for the IWG and its projects should be re-evaluated. Ecology could purchase or condemn 800 acre feet of water for far less than the $64 million dollar tab that the IWG is about to drop on the public.

It is the responsibility of the Bureau of Reclamation and USFWS to bring Leavenworth Hatchery into compliance with state and federal laws. It is the duty of the four Icicle Creek water right holders to ensure they do not harm endangered salmonids, and to employ 21st century water efficiency practices. It is the mandate of the regulatory agencies to secure this compliance, not negotiate it away.

Ultimately, if an accurate picture is presented, the public will not pay for the sins and omissions of Icicle Creek diverters. Why are we spending millions to get that picture?

 

 


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Dismantling the Enchantment Lakes by Pick and Shovel

Ski Hill Lawn 1

Ski Hill residences in Leavenworth are served water by Icicle Irrigation District. Inside Leavenworth, the District’s water is growing large and lush lawns, pears not so much.

‘”We have helicopters scheduled to go up to Eight Mile,” [IPID manager Tony] Jantzer said, “We’ll start on Eight Mile, digging that out. We’ll move to Colchuck on Wednesday. I hope to get more water out of those lakes . . .”

All the work will be done the old-fashioned way with picks and shovels.  At Eight Mile Lake Jantzer said they should be able to clear out four or five feet, which should produce another 160 acre feet of water.

The outlet at Colchuck Lake is down three feet.  Once that is dug out, it should produce another 100 acre feet of water . . .’

Ian Dunn, Leavenworth Echo, “Icicle/Peshastin Irrigation Districts struggling to provide enough water” (Sept. 2, 2015).

When the Alpine Lakes Wilderness was designated in 1976, the Icicle and Peshastin Irrigation Districts (IPID) held pre-existing rights to divert water from several of the Enchantment Lakes – and those water rights were grandfathered in.  This month, however, the Irrigation Districts are taking the unprecedented step of helicoptering into the Wilderness to lower the outlets to at least two of the lakes – Eightmile and Colchuck — and take more water.

Ski Hill Lawn 2 (6-18-15)

More Leavenworth lawn irrigated compliments of the Icicle Irrigation District diversions from the Enchantment Lakes. A remnant pear orchard appears in the background.

This project offers multiple ironies.  The largest irony is that, although the Districts do serve water to Wenatchee Valley pear growers, many orchards have been converted into residential neighborhoods as the Cities of Leavenworth and Cashmere have expanded their urban boundaries.  IPID is diverting water out of the Alpine Lakes Wilderness to irrigate not just pears, but also very large expanses of lawn.

The IPID manager acknowledged this in a Sept. 2, 2015 interview with the Leavenworth Echo, where he lamented the difficulty of getting district customers to conserve water.  According to the article, there are:

“1,143 users in the Icicle Irrigation District, the bulk of which is residential.  Over the course of the long, hot summer Jantzer said the Icicle users have been using record[] amounts of water.”

Adding to the incongruities, IPID’s dismantling and de-watering of the Enchantment Lakes is up for funding by the Washington Department of Ecology’s drought-relief funding program.   Ecology originally granted IPID $41,000 to install pumps into Eightmile Lake, but according to a Sept. 3 Capital Press article, the District was unable to rent helicopters of the size needed to implement that project.   Ecology’s website now indicates it is considering granting $12,500 to IPID for the “pick and shovel” alternative.  Thus, the public will likely be paying IPID to inflict its destruction on the Alpine Lakes Wilderness.

Normally an application to take more water out of a lake would require public comment and review, and strict statutory standards to prevent harm to the environment and other water users.  But Ecology’s drought relief funding rule exempts applications from public review and requires expedited decisions – within 15 days.  Questions regarding IPID’s relinquishment of water rights that it has not used for “80 to 100 years” remain unanswered.

Also missing in action is the U.S. Forest Service, which is tasked with managing and protecting the Alpine Lakes Wilderness.  Do IPID’s easements and special use permits really allow it to tamper with these lakes?

There’s a back story too.  Icicle-Peshastin Irrigation District has been eyeing methods for increased access to Alpine Lakes water for some time.  As described in Naiads’ February 2015 four-part series, “New Dams and Diversions for the Alpine Lakes,” IPID, Ecology, and several other public agencies formed the Icicle Work Group in order to “bargain” for more water out of the Alpine Lakes Wilderness.

IPID Ditch 4 (6-18-15)

IPID’s canal transports water from Icicle Creek to its customers. Several miles of the canal are only partially lined, and leak enough water to support a robust but artificial riparian zone.

The Center for Environmental Law & Policy resigned from the Icicle Work Group in July 2015 because of onerous new rules converting the IWG from consensus to majority rule.  The new rules require IWG members to support the decisions of the majority and prohibit public dissent.  (Full disclosure:  CELP was represented by the author of this post.)

Before resigning, CELP circulated a Water Conservation Potential Report, describing IPID’s inefficient operations and proposing alternative methods to “solve” upper Wenatchee Valley water supply problems.  Chief among these is reduction of lawn irrigation in the Ski Hill residential zone.  Another solution is to line IPID’s leaky canal, which as shown in the photo at right, is supporting a substantial amount of phreatophyte vegetation.

Rather than take the “soft path” of water conservation, however, IPID has chosen the hard path of pick-axe and shovel.   Apparently, during drought, no water resource is safe – even waters in federally protected wilderness.

 

Spokane River - Sandifur Bridge - 630 cfs - 8-8-15


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How the City of Spokane is Letting Its River Down

2011 Water Billboard

Mayoral water war on display. (Photo: Spokesman Review) Check out www.H2KNOW.info for a different kind of message regarding Spokane’s water.

It’s hard to forget the water wars of 2011 – the mayoral water wars that is.  Anonymous billboards went up around town questioning why – with 10 trillion gallons of water in the Spokane-Rathdrum Aquifer – the City of Spokane would raise water rates to induce conservation.  A mayor and a city council member lost their seats, due in part to this highly misleading message.

Abundant groundwater notwithstanding, Mother Nature, combined with a City revenue structure that incentivizes water sales, have created a one-two punch for Spokane’s “most precious resource.”   The Spokane River is flowing at near-record lows.  It doesn’t have to be this way . . . but somebody in the City of Spokane needs to speak up.

Spokane River - Sandifur Bridge - 630 cfs - 8-8-15

Spokane River flowing at 630 cfs at the Westlink Pedestrian Bridge on August 8, 2015.

The Spokane River is directly fed by the Spokane-Rathdrum Aquifer, so groundwater pumping by all of the municipalities in this region is causing extreme low flows.  For the last few days, the River has been dropping into the 550 cfs range.  That’s 300 cfs below the minimum flow that the Department of Ecology adopted last February, and less than half of what the flow has been this time of year for the last few years (and a third of what it was historically).  The lowest flow on record is around 450 cfs, and it seems possible that a new record may be in the offing if people don’t put the brakes on their water usage.

As the City’s Water System Plan states (and common sense tells us), summer is the season of high water use.  From October to April, monthly water demand averages 31 to 44 million gallons per day (mgd).  May through September, the average jumps to between 64 and 114 mgd.  But this year, 2015, July usage was a whopping 123 mgd.   No wonder the Spokane River is suffering.

The City of Spokane has failed the Spokane River by stepping back from reasonable water conservation planning and implementation.

  • Arizona Block Rate Chart

    Examples of inclining block rate structures in Arizona. When a higher tier kicks in sooner and goes higher, people begin to conserve. Spokane’s rate structure would fall near the bottom of this graph.

    Water rates.   A “conservation rate structure” is the most effective way to get water customers to pay attention to and cut back on their water use.  The pocket book speaks.  The basic idea – the more you use the higher your rate – creates an incentive to drop your water usage into a lower/cheaper tier.  But Spokane’s rates make very minor distinctions for higher usage – and are ineffective in encouraging Spokane citizens to turn the outdoor spigot and sprinklers down (or off).

    For example, Spokane residential customers can use “6 units” of water (about 4,500 gallons) for 28 cents/unit or $1.71.  The next “4 units” (about 3,000) gallons costs 60 cents/unit or a total of $2.41.  The next jump is to 81 cents per unit.  A household can use 15,000 gallons per month (500 gallons per day) – a large amount – for just $12 per month.  These are not conservation-inducing water rates.

  • Conservation Goals.  Washington law requires water purveyors to adopt water conservation goals.  The City’s goal is to reduce water usage by 2% each year.  It is a modest goal, but the City can’t seem to meet it (in part because the City’s water rates are so low).  In 2014, the City’s summer season water usage actually exceeded the conservation goal by 13% (goal was 8.5 billion gallons, actual use was 9.6 billion gallons).  According to the City’s 2014 Drinking Water Report, the reason the City did not meet its goals was usage by commercial/industrial users.   Clearly, this is an area where higher water rates could have a meaningful impact.
  • Water Leakage.   The City is losing a lot of water out of its “World Water II era” water mains.  The Drinking Water Report cites 17.8% leakage in 2014.   The state’s water efficiency law, adopted in 2003, requires a cities to control water leakage to a rate of 10% or less.  Twelve years and counting, many wonder when Spokane will get around to compliance.
  • Water Billing Practices.   If you are a Spokane utility customer you get a bill every month.  And it tells you how much water you’ve used.  But the City only checks your meter every 60 days or so.  So, by the time you get a bill  with actual data, it is really too late to save much water.   (Hint:  read your own meter to monitor your usage and set personal conservation goals.)
  • Water Conservation Table - Spokane WSP (draft Dec. 2014) (2)

    Spokane Water Conservation Measures (City Water System Plan, draft Dec. 2014)

    City Conservation Plan.   The City, by law, must adopt a water conservation plan every six years.   The latest plan, a December 2014 draft, identifies 19 measures (table at right).  These include water audits, low flow appliance rebates, education, and etc.  Some measures are not being implemented and some don’t even make sense.

Clearly, with record usage this year, these measures are not working, and  as mentioned, the City’s water rate system is not effective.  The City’s “Slow the Flow” campaign is virtually invisible. (And really, does anyone change their water habits based on a 3×8 inch insert in their utility bill?)

Non-profit groups Sierra Club Upper Columbia River Group and the Center for Environmental Law & Policy have taken leadership to encourage residents of Spokane to cut their water usage.   The H2KNOW campaign has billboards up and is getting media coverage.   Visit the H2KNOW.info website and Facebook page and see if you can translate a few tips on water reduction into your daily life.