Dept of Ecology responds to lawsuit, re-issues Trios/Easterday water right with river flow protections
Seattle – Today conservationists announced they will not appeal a revised water right issued by Washington Department of Ecology (Ecology) to Trios Health/Easterday Farms after Ecology amended the water right to protect Columbia River flows. The earlier legal challenge of the water right focused on Ecology’s practice of issuing new water rights that deplete rivers by using “out-of-kind mitigation.”
“We are pleased that Ecology has abandoned ‘out-of-kind’ mitigation for this water right,” said Rachael Paschal Osborn, senior policy analyst for the Center for Environmental Law & Policy (CELP). “Out-of-kind mitigation is illegal. It threatens to de-water rivers statewide.”
The water right will irrigate 2000-3000 acres of land owned by Easterday Farms. Kennewick General Hospital (now Trios Health) received title to the lands as a gift in 1980, but the lands lacked irrigation water. Trios sold the land to Easterday Farms, contingent upon receiving a water right from the state.
In 2013, Ecology issued the water right, but without the instream flow protections routinely required for the Columbia River. Rather than providing “bucket-for-bucket” mitigation to protect Columbia River flows, Ecology instead required a $6 million payment by Trios Health/Easterday to pay for habitat improvements in the Yakima and other watersheds. The Okanogan Wilderness League and CELP appealed (see “background” section below), and the Pollution Control Hearings Board directed that the matter be sent to trial, requiring Ecology to prove that out-of-kind mitigation would actually offset the impacts to Columbia River flows. Rather than going to trial, Ecology issued a new water right with instream flow and in-kind mitigation requirements.
“Rivers in Washington State, including the Columbia River, are already in trouble from too many water rights and withdrawals,” said Osborn. “An honest appraisal of out-of-kind mitigation would show that habitat projects, whatever their merit, still fail to protect instream values, including fish, navigation, recreation, and scenic beauty.”
The new 2015 water right is conditioned on the Columbia River instream flow rule. In addition, the $6 million to be paid by Easterday Farms will be used to purchase and retire existing water rights to directly offset impacts.
“It is not appropriate to exchange out-of-kind mitigation for water. You can anchor a tree to the bottom of the river, but it won’t help if the river is dry,” added Osborn. “If Ecology issues similar water rights in the future, CELP will have no choice to but to challenge.”
The OWL/CELP 2013 appeal of the Kennewick Hospital/Trios/Easterday water right was based on the following issues:
– The water right would deplete flows in the impacted stretch of the Columbia River, violating the state’s own instream flow rule adopted to protect salmon migration.
– The mitigation projects generally would have had a short life-span, but the removal of water from the Columbia River would be perpetual and unending.
– The out-of-kind mitigation projects in the original water right would have been completed anyway, funded through federal and state programs to recover salmon. This has turned out to be true – most of the one dozen habitat projects have been constructed.
– Washington water law does not authorize the state’s water agency to give away state waters in exchange for money or non-water mitigation. There is growing public concern about financial mismanagement within the Department of Ecology, especially relating to the Office of the Columbia River that coordinated the Trios/Easterday water right.
CELP has worked to protect Columbia River flows for the past two decades. In 2004 the National Academy of Sciences published its analysis on Columbia River flows, warning Washington State that water rights, water diversions for irrigated agriculture, flow adjustment for hydropower generation, and warming water temperatures from climate change threaten the survival of salmon and other fish and wildlife values.
Links to more background information:
The Unkindest Mitigation – how Ecology’s new water impairment ideas will hurt rivers and fish
CELP, Columbia River Vision, (Nov. 2000)
National Academies of Science, Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival