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


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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.


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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.

 


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Drought Conundrums

Westlink Bridge at 1500 cfs (6-9-15)

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.

70_Percent of your water use

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.


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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.

______________________

ferndale-wa aerial (landsat.com)

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 (NWIFC)

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.

Nooksack River percent days flows unmet (ECY 2015)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.

Nooksack River IRPP flows v fish flowsEven 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.


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

WRIA 1 Map (Dept of Ecology)

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

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?

Nooksack River IRPP flows v fish flows

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.

 

 

 


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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.