Monthly Archives: January 2015

CELP Water Briefs – January 2015

Legal Challenge Filed Against Dungeness Instream Flow Rule The Olympia Resource Protection Council, a property rights protection organization in Sequim, has filed a lawsuit challenging the Dungeness River Instream Flow rule, adopted in 2012 by the Department of Ecology.  The ORPC complaint alleges a host of novel theories about Washington water law, including that fully protecting instream flows is outside Ecology’s authority.  The Dungeness watershed is over-appropriated due to issuance of municipal and agricultural rights that exceed supply.  The Dungeness River suffers from low flow problems that impede salmon passage, and in some areas groundwater is in decline or seawater intrusion is a concern.   The 2012 instream flow rule closes most of the watershed and requires mitigation for new rights.   Mitigation is facilitated by a water exchange, established and run by Washington Water Trust, which assists in providing water for new uses and instream flow restoration.

Alpine Lakes Wilderness – Are New Dams & Water Diversions in the Offing? CELP participates in the Icicle Work Group, a collaborative process seeking to find new water supply for the City of Leavenworth, as well as improve instream flows in Icicle Creek and other goals.  The IWG is evaluating a number of proposals, including increasing storage and water diversions from seven lakes in the Enchantment Lakes region of the Alpine Lakes Wilderness.   CELP policy advisor Rachael Osborn has posted a four-part series describing the Alpine Lakes proposals on her Naiads blog.  More information can also be found on the Chelan County Natural Resources Department website.  Chelan County co-sponsors the IWG along with the Department of Ecology’s Office of the Columbia River.

Cow Palace Dairy Liable for Yakima Groundwater Pollution On January 14, a federal judge in Spokane ruled that Cow Palace LLC is liable for disposing of its dairy manure in a manner that contaminates groundwater in the lower Yakima Valley. Cow Palace keeps approximately 7,300 milking cows at its dairy facility (along with another 3,700 calves, non-milking cows, etc.) which generate over 100 million gallons of manure annually. The dairy spreads this manure on corn and alfalfa fields as fertilizer, or stores it in lagoons and compost piles. The court found that Cow Palace applies the manure to fields in excess of agronomic rates, and that its lagoons and compost piles are leaching, all of which causes nitrates to percolate downward into groundwater. This in turn has contaminated groundwater that serves as a drinking water source for homes down-gradient of the dairy. As such, the Court held that Cow Palace’s manure “management” constitutes open dumping, causing a substantial and imminent endangerment, in violation of the federal Resource Conservation and Recovery Act or RCRA, and that Cow Palace and the corporate entities that control the dairy are liable. The case will go to trial on remedies and other issues. The decision is long, but worth a read.

Public can’t afford to subsidize new water projects

John Osborn And Ken Hammond

This article was originally printed in The Spokesman-Review.

Water is political currency. Politicians hold hostage worthy public programs in exchange for public funding of money-losing water supply projects.  A case in point is the Central Arizona Project or CAP – the largest, most expensive aqueduct in the United States.

In the 1960s, President Lyndon B. Johnson horse-traded approval of CAP in exchange for votes to enact civil rights legislation. While LBJ’s goals were worthy, it is a fact that taxpayers got stuck with most of the bill for CAP.

Similar subsidies apply to federal projects all over the West, including Eastern Washington.

To protect the public purse, objective economic analysis of water projects is a powerful tool. Two recent studies shine light on Eastern Washington’s two major federal irrigation projects: the Columbia Basin Project and the Yakima Project. Productive irrigated agriculture and local economies depend on these federal mega-projects. But the two projects have not paid for themselves – far from it. State and federal budget leaders should take heed.

A 2014 study by the U.S. Government Accountability Office (“Availability of Information on Repayment of Water Project Costs Could Be Better Promoted”) evaluated irrigation district repayment for 130 federal water projects in the Western U.S.

At Grand Coulee Dam, the Columbia Basin Project pumps uphill 3.3 million acre-feet of river water for delivery to 670,000 acres across the Columbia Plateau.  This massive project cost $2.4 billion to construct. (In today’s dollars, the cost would be enormously higher.) Of that, $685 million was allocated to irrigated agriculture. But $495 million – nearly 75 percent – has been written off for payment by Bonneville Power Administration ratepayers, socializing the costs to millions of people paying their utility bills.

As reported by the GAO, of the $190 million left to be repaid by the irrigators, only $60 million has been paid, with payments stretched over 50 years at zero interest. On balance, irrigators have paid less than 5 percent of their share.

The Yakima Project stores and diverts 1.2 million acre-feet of water from five reservoirs in the Cascade Mountains, serving irrigation districts in Kittitas, Yakima and Benton counties. Here, construction costs total $286 million, with $149 million allocated to irrigators. The GAO reports slightly better repayment. Still, Yakima Valley irrigators have paid less than 10 percent of the total costs.

Crops grown in these federal projects don’t pay for the existing water supply infrastructure, loudly signaling that expanding these irrigation projects won’t cover costs either. Nonetheless, the U.S. Bureau of Reclamation has partnered with Washington’s Office of the Columbia River to pursue multibillion dollar expansions of both the Columbia Basin and Yakima projects.

Fortunately for taxpayers, federal guidelines now prohibit federal funding for water projects when costs exceed benefits. A recent economic study of expanding the Columbia Basin Project into the Odessa Subarea forced the bureau to decline funding that project.

Instead, the Office of the Columbia River has stepped into the gap to assess whether, and how much, Odessa Subarea farmers can pay to pump and deliver water to their farms. Depending on size, state subsidies of several hundred million or a few billion dollars would be needed to replace groundwater with river water for this small group of potato farmers.

The proposed Yakima water projects are similar. To expand in the Yakima, large state subsidies will be required to replace traditional federal subsidies to pay for the excess of costs over benefits.

In 2013, the cash-strapped Washington Legislature wisely tasked independent economists to study the latest Yakima Basin proposal.  In December, a team of Washington State Water Resource Center economists concluded that costs of water supply projects in the Yakima Basin – including new dams – outweigh benefits by 90 percent or more. In contrast, proposed fisheries enhancement projects of importance to tribes and the general public are cost effective. (Read: “Benefit-Cost Analysis of the Yakima Basin Integrated Plan Projects.”)

Public subsidy for new irrigation projects needs to end. Dust Bowl-era justifications no longer apply to an increasingly corporate agricultural sector. Governments struggle to pay for public necessities such as education, health care and even maintenance backlogs for existing dams and water projects. New and expanded water projects are simply not affordable.

We are at the end of the water frontier. Water-project proponents in Washington, D.C., and Olympia must acknowledge that federal irrigation projects in Eastern Washington don’t pencil out. It is time to end wasteful feasibility studies, close the chapter and move on. There are more affordable means of sustaining profitable agriculture in Eastern Washington.

John Osborn is a Spokane physician and conservationist with the Center for Environmental Law & Policy and the Sierra Club. Ken Hammond is retired professor and chairman of the department of geography at Central Washington University and has been active for decades in water planning.

The Unkindest Mitigation – how Ecology’s new water impairment ideas will hurt rivers and fish

By Rachael Paschal Osborn

There’s a new set of euphemisms circulating at Ecology’s Water Resource Program. Terms like “redefining impairment” and “flexible mitigation authority” are the latest linguistic gems. Lift the lid, and you find proposals to grant new water rights in exchange for out-of-kind mitigation, that is, trading water for habitat improvement projects, real estate easements, large woody debris, and of course, money. These proposals are under discussion at the agency, in the courts, and likely soon, the Washington State Legislature.

The problem is age-old. Washington’s rivers are water scarce, particularly during the summer months, when rainfall is low, weather is hot, and native salmon and trout species need abundant, clean, cold water to survive. Subtract the hundreds of thousands of existing water rights and permit-exempt wells that already pump water out of our ecosystems, and it is tough to find a river or aquifer that has much water available to supply new development.

Fortunately, Washington has strong instream flow laws that require Ecology to protect the water flowing in rivers, at least what’s left. In 2013, in the case Swinomish Tribe v. Ecology, the Supreme Court held that instream flow rights are just like out-of-stream water rights, entitled to the same protections afforded to farms or cities. Regrettably, Ecology believes it has a duty to guarantee water supply for new development, and that the Swinomish ruling is a problem and must be overcome.

Because protecting instream flow constrains the issuance of new water rights, Ecology began several years ago to allow water right mitigation. It started off a little rocky – some readers may remember the Rube Goldberg-esque mitigation plan for the Battle Mountain Goldmine. But eventually the right ideas settled in. If a project proponent could offer water in exchange for a new right – by retiring an existing right, or obtaining water from a water bank – then the answer might be ‘yes’ rather than ‘no.’ Properly implemented, these are not bad ideas.

But, water-for-water mitigation can be difficult to come by, or expensive. So, to help out would-be water users, Ecology invented a new idea: “out-of-kind mitigation.” It first appeared in Water Resource Program Policy No. POL-2035 (Evaluating Mitigation Plans) adopted in February 2013.

POL-2035 identifies a mitigation hierarchy. First, mitigation for a water right should be in-kind, that is, a water for water trade. Ideally, the replacement water should be in the same place at the same time as the water that’s being used. But, if that’s not possible, then replacement water could be less than perfectly matched to time and place of impact.

And if that’s not possible, then replacement water could be something other than water, i.e., out-of-kind mitigation. POL-2035 defines out-of-kind mitigation as “making water quality or habitat improvements, removing fish barriers, or providing other non-water improvements,” including “monetary investment strategies.”

This is as good as gold for water users. If all you need to do to get a water right is fund a fish project, or buy an easement, or just hand over some money to Ecology, then “bob’s your uncle.”

The problem, of course, is that at some point, there’s no more water. Or so little water that aquatic habitat is destroyed. It doesn’t matter if there’s a tree anchored to the bottom of the river, if the river is dry.

Ecology has already used out-of-kind mitigation to justify new water rights. The City of Yelm water right trades direct impacts to instream flows in the Nisqually River for purchase of a wetland in the Deschutes River basin. An appeal of that decision, Foster v. Yelm, is pending in the Supreme Court.

And then there’s the water right issued to Kennewick Hospital, which promptly re-sold it to Easterday Farms. In exchange for 4,000 acre-feet of water out of the Columbia River, Easterday will pay $140,000 per year over a 43 year period (a total of $6 million) to Ecology’s Office of the Columbia River or OCR. In exchange, OCR is funding eleven habitat projects in several tributaries. These projects include floodplain restoration projects, de-commissioning one road and repairing another, engineering a logjam in the Cle Elum River, etc., etc. OCR is also “scoping” two projects involving fish ladders and irrigation efficiency.

It’s a real smorgasbord. The only thing missing is water.

Okanogan Wilderness League and CELP are challenging the Kennewick/Easterday water right, including whether Ecology has authority to trade out-of-kind mitigation for water rights. The PCHB has scheduled the matter for hearing in May. The legal issue as re-cast by the Board is:

“Does the permit provide adequate conditions [i.e., the out-of-kind mitigation projects] that will retain base flows to preserve the instream flow values enunciated in RCW 90.54.020(3), and to protect such values from impairment, considering cumulative impacts to the flows of the Columbia River given additional appropriations?”

It’s a mouthful. What’s being asked is this: can out-of-kind projects really substitute for instream flows? By their nature, CELP says no. It’s apples and oranges, rolling at warp speed down a slippery slope. But Ecology’s defense is that the out-of-kind projects are so good for fish in the tributaries that the benefits outweigh any harm that might be caused by removing more water from the Columbia River. Stay tuned on this one.

But that’s not all. All this hard thinking about out-of-kind mitigation at the legal level gave Ecology a new idea. They call it “re-defining impairment.” Ecology thinks instream flows are getting too much deference. That dratted 2013 Swinomish case said that instream flow rights must be treated like all other water rights – fully protected from impairment. What if we simply change what impairment means? (But only for instream rights, certainly not for real water users.)

According to Ecology’s recent message to the legislature, re-defining impairment would mean evaluating harm to rivers in terms of lost habitat rather than quantitative water depletion. This, of course, would then justify the use of, you guessed it, out-of-kind mitigation.

We know from experience that wetland and shoreline mitigation projects are often not successful.  (A 2002 evaluation of wetland mitigation found 50% success rate.)  Why Ecology thinks that this type of approach could adequately replace water rights is a true mystery.

We also know that human ingenuity can solve water supply problems. Conservation, cisterns, extension of public supply lines, and water banks are examples of sustainable solutions already in successful use around Washington.

Out-of-kind mitigation is a very unkind approach to solving water problems. There are better ways to take care of our rivers.


Wetland Mitigation in the United States: Assessing the Success of Mitigation Policies.

Washington State Wetland Mitigation Evaluation Study, Phase 1: Compliance

Washington State Wetland Mitigation Evaluation Study, Phase 2: Evaluating Success

Water Resource Program Policy No. POL-2035, Evaluating Mitigation Plans (February 2013)

Finding Rural Water Domestic Solutions While Protecting Instream Resources (Final Draft, Nov. 2014)