THE DISPUTE
- OVERVIEW
- EXECUTIVE SUMMARY
- LOCATION
- LEAD UP TO DISPUTE
- ICICLE WORK GROUP
- PROCEDURAL CONCERNS
- WORK GROUP PROPOSALS
- ENVIRONMENTAL REVIEWS
- WATER RIGHTS – initial grants
- WATER RIGHTS – actual use
- CONFLICT WITH WILDERNESS
- EIGHTMILE LAKE EASEMENT
- USE IT OR LOSE IT
- TURNING A PROBLEM INTO A SOLUTION -- The Fish Hatchery
- A DIFFERENT SOLUTION?
OVERVIEW
Dams or other structures on seven lakes and a tunnel or siphon to drain an eighth one, all within the Alpine Lakes Wilderness – that is what an irrigation district is considering, with support from a county and state agency. They contemplate using these wilderness lakes in Washington’s Cascades as reservoirs in order to supply water for downstream development.
The irrigation district and Leavenworth National Fish Hatchery already have small, primitive dams on most of these lakes--those dams are not in dispute--but they have developed and are considering plans for dramatic expansion. The irrigation district claims that its water rights, dating from the 1920s, were grandfathered in before Congress designated the area as wilderness.
But questions remain as to whether those rights can be expanded now, when for many years they were only partly used and the unused rights may have been forfeited under state law. It is unclear if they can convert water rights from the irrigation purposes for which they were granted to domestic use -- a significant change. Other questions arise under federal law, which forbids new or expanded structures and installations within a wilderness area.
Endangered species issues may also be involved, as well as questions about impacts on riparian zones in the creeks that flow from lakes to Icicle River. Underlying all these issues is the more fundamental question of whether it would be cheaper and more sustainable to require conservation measures rather than further damming and diverting the wilderness lakes.
The proponents are pressing ahead while ignoring the many questions these ideas pose. This website describes the dispute.
This website is specifically about the Icicle, but it is helpful to see this dispute in the broader context. Water disputes are not new to the West, but the trend is for more of them to revolve around water in remote areas. This is because the arid West keeps growing and all the other water is already over-appropriated. So the only place left to tap is the wilderness. No one is asking what we will do after that.
The Icicle calls for us to start facing that question now.
EXECUTIVE SUMMARY
The rainshadow side of Washington’s Cascades relies on rivers that flow east out of the mountains into the desert. These streams support towns and a robust fruit industry in the Wenatchee River valley.
At the head of this valley, the town of Leavenworth has become a popular destination because of its scenery and amenities. This popularity has brought growth pressures and demands for more water. A dispute between Leavenworth and the state’s Department of Ecology led to a lawsuit over that agency’s right to manage the town’s water supply. Following a court ruling adverse to the state, it began efforts to settle the dispute by looking for ways to find more water for Leavenworth.
This led to the formation of a work group funded be the state and operated by Chelan County with the Icicle-Peshastin Irrigation District playing an active role. The irrigation district holds certain water rights within the watershed of Icicle River, a tributary of the Wenatchee, that drains part of the nearby Alpine Lakes Wilderness.
Once formed, the Icicle work group expanded its focus to include not only a search for more water for Leavenworth, but also to address stream flow issues in the Icicle affecting tribal rights, endangered species, and the Leavenworth National Fish Hatchery. The group also expanded its membership to include a number of agencies and non-governmental organizations interested in management of the Icicle’s waters.
The presence of government agencies in this group raises questions about how it operates. Those agencies may be required in the future to approve or deny proposed actions taken by the group, yet the work group operates under rules that require all members to abide by its decisions and to avoid public criticism of them. The work group also may be ignoring requirements for organizations that advise federal agencies.
Despite these concerns, the work group has developed alternative proposals that would dramatically change eight lakes within the Alpine Lakes Wilderness. Its so-called Icicle Strategy considers the possibility of big dams to raise the water level and then draw it down on two lakes, automated systems to do the same thing on five other lakes, and a tunnel or siphon to drain an eighth lake. If adopted, these proposals would turn these lakes into on-demand reservoirs with fluctuating water levels and muddy shorelines. Environmental reviews are underway.
The irrigation district and fish hatchery claim the right to develop these dams and structures within the Alpine Lakes Wilderness even though federal laws and the management plan governing this Wilderness forbid them. The irrigation district and hatchery assume that their water rights, which were granted before Congress created this Wilderness, take precedence. Environmentalists acknowledge that the irrigation district and hatchery have grandfathered rights to keep storing and using as much water as they have in the past, but that amount is far less than what the irrigation district and hatchery contemplate using now. Even though they may have old paper rights to more water, they have forfeited or abandoned those additional rights through non-use. This is a settled principle of water law. Moreover, when Congress created the Alpine Lakes Wilderness, it appropriated any non-used water for wilderness purposes.
The irrigation district also claims the right to access and use water from one lake because of an easement the US Forest Service gave when it acquired the irrigation district’s lands. But an easement would only allow the irrigation district to use existing rights; it would not expand them.
The Icicle Strategy raises not only serious legal questions, but also economic and policy issues. The most fundamental one is whether the arid West can keep relying on new water sources to meet its demands as those sources continue to shrink. It is time to start addressing these needs in other ways.
LOCATION
The Alpine Lakes area is the scene of a growing controversy.
More than forty years ago, Congress described this area as: “The Cascades Mountains of the State of Washington between Stevens Pass and Snoqualmie Pass, commonly known as the Alpine Lakes region, comprise an environment of timbered valleys rising to rugged, snowcapped mountains, dotted with over seven hundred lakes, displaying unusual diversity of natural vegetation, and providing habitat for a variety of wildlife.”\1
That was part of the 1976 law by Congress creating the Alpine Lakes Wilderness. No other place in the Cascade Mountains is quite like it.
One reason the Alpine Lakes region is unique is that it straddles the crest of the Cascades -- wet side on the west, dry side on the east. Another is that the highest peaks are not along the crest itself but some twenty miles to the east. The Stuart Range, named after a nine thousand foot summit called Mount Stuart, stand out like a Northwest version of the Grand Tetons.
High in the Stuart Range a plateau dotted with tarns is aptly called the Enchantment Lakes. Other lakes, close under the base of these peaks, drain north into a river fittingly called the Icicle. Together, these peaks, lakes, and the streams flowing from them, make this a very special place. But here in the Icicle, in one of the most scenic parts of the Alpine Lakes Wilderness, a controversy is brewing.
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1. Alpine Lakes Area Management Act of 1976, 16 U.S. Code 1132 note, section 2(a), P.L. 94-357, 90 Stat. 905.
LEAD UP TO DISPUTE
The rainshadow side of Washington’s Cascades presents a unique combination--lots of water in the desert.
The water comes from snow melt in the mountains. The desert is here because these mountains wring the water out of clouds coming in off the Pacific, so that here on the dry side, rivers flow out of the mountains into sagebrush country.
The Wenatchee, named after a tribe that lived in its sheltered valley, is one of those rivers. It flows some 90 miles from the Cascades crest to its confluence with the Columbia. Where these rivers meet the city of Wenatchee now spreads across the valley, proclaiming its fame as the Apple Capital of the World.
The combination of sun, soil, and water has turned the Wenatchee Valley into a carpet of fruit orchards. Forecasts predicted that it would produce 727,000 tons of apples in 2017, not to mention peaches, apricots, pears, and cherries.\2 Sunshine and scenery also draw people. Some work, some have come to retire. Towns now dot the Wenatchee Valley--Monitor, Cashmere, Dryden, and Peshastin. 55,000 people now live in the valley, with the population growing 4-5 percent each year.\3
At the head of this valley, where the Cascades rise up, is the valley’s final town--Leavenworth. In the early days it thrived on logging and mining. But then the railroad relocated and the sawmill closed. For the next thirty years the town sat in the doldrums.
Then, in the early 1960’s visionaries proposed that Leavenworth, nestled as it is up against towering mountains, right where the Icicle River comes out of one canyon and joins the Wenatchee River coming out of another, should take more advantage of its setting.
The result is the Bavarian-style village that Leavenworth has become. Local history reports: “Ever since the change to a Bavarian motif, Leavenworth has become a pillar of the tourism industry. The story is a landmark case of human spirit. The people of Leavenworth not only survived their most critical hour, they endured.”\4
Leavenworth’s setting is both a blessing and a curse. It attracts an estimated 2.5 million annual visitors,\5 but its amenities also threaten to turn it into a little Sun Valley or Banff. Most of the folks who live here now would just as soon keep it as a small town. But progress has a way of progressing, whether you like it or not.
As Leavenworth has grown, water has become a bigger issue. This sparked a dispute between the city and Washington’s Department of Ecology, which manages water rights. The dispute was over the size of the city’s water rights, and whether the department had any say in that question. This led to a lawsuit and a trial court decision in 2011 that undermines Ecology’s authority to quantify certain water rights.\6 The statewide implications are substantial, so the department appealed and then proposed a settlement that might vacate the trial court’s ruling.
This appeal is now in limbo while the parties work on a settlement.
Settlement ideas have expanded to include water issues at the Leavenworth Fish Hatchery and streamflow in the Icicle, but the main thrust of this effort is to help the City of Leavenworth find more water.\7
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2. Creamer and Jessup, Washington State Industry Outlook and Freight Transportation Forecast: Apple Industry, Table 3 (March 2008).
3. https://www.census.gov/quickfacts/table/PST045215/53007
4. http://cityofleavenworth.com/about-leavenworth/leavenworth-history/
5. Leavenworth Chamber of Commerce email (May 17, 2017).
6. City of Leavenworth v. Department of Ecology, Chelan County Superior Court cause 09-2-00748-3.
7. New Dams & Diversions in the Alpine Lakes Wilderness? Part I (January 7, 2015).
ICICLE WORK GROUP
The Department of Ecology created a unit called the Office of the Columbia River in 2006. As directed by state law, its goal is to “aggressively pursue development of water supplies” in the Columbia basin.\8 Toward that end, it is pushing for new dams at Bumping Lake and Lmuma Creek, among others. Finding water for Leavenworth as a way to settle Leavenworth’s lawsuit against the department was a natural addition to this list.
The Icicle watershed, for a number of reasons, was the easiest place to do this. It is close to the City of Leavenworth, and the Leavenworth Fish Hatchery, which relies on the Icicle and also has water supply problems. The Icicle itself has stream flow issues affecting fish as well as issues involving tribal fishing rights. Most of all, the Icicle Irrigation District already holds water rights in the drainage. So all eyes turned to the Icicle.
In 2012 the Office of the Columbia River entered into a $700,000 contract with Chelan County, asking the county to form and manage an Icicle Work Group.\9 Once it was underway, Washington’s legislature funded this work group with another $2 million in 2015.\10
The Icicle Work Group has high-sounding goals about finding “collaborative solutions for water management within Icicle Creek” and “providing a suite of balanced benefits for existing and new water users.”\11 Some of this involves enhanced stream flow for fish, but mainly this translates into finding more water for Leavenworth.
The work group has 14 members, more or less, depending on who most recently has joined or quit. Membership is by invitation only, based on a direct interest in management of Icicle water. Members come from the Department of Ecology, Chelan County, US Fish & Wildlife Service, several other federal agencies, tribes, irrigation and agricultural interests, and some environmental groups. Oddly, although the Icicle mostly flows through national forest land, the Forest Service was not initially invited. It is now a member.
Several groups either declined invitations or have resigned over concerns about work group procedures.
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8. http://www.ecy.wa.gov/programs/wr/cwp/crwmp.html
9. New Dams & Diversions in the Alpine Lakes Wilderness? Part I (January 7, 2015).
10. Dam projects begin environmental scoping, Alpine issue 1 (2016).
11. Bekker, Water Users Propose Icicle Creek Water Projects in Wilderness, Alpine issue 1 (2014).
PROCEDURAL CONCERNS
The work group spent a year developing operating procedures. It operates on a “quid pro quo” basis, which generally means it must gain something for anything it concedes. It is a horse-trading system. For instance, hypothetically, such ecosystem benefits as improving stream flow for endangered fish may only be achieved if new water supply is provided for Leavenworth. In other words, all points of view must ”win” something. This raises questions about whether requirements under such laws as the Wilderness Act or Clean Water Act may be superseded or watered down under a quid pro quo process.
Initially the group based all decisions on consensus. But when the public raised concerns about threats to wilderness lakes, key members of the group worried that all members might not support proposed dams on those lakes. So the group changed its internal process from consensus to majority rule.
When the group operated by consensus, each member had a veto. Under the new majority rule system, all members are required to support the group’s conclusions, whether they agree or not. In short, majority decisions bind everyone.
This is the way majority rule usually works, but it is troublesome when regulatory agencies such as the US Forest Service and Fish & Wildlife Service are required as members of the work group to accept majority decisions. Do these decisions bind the agencies? Can they replace legal requirements for public notice and comment? Do they supersede consultation requirements under the Endangered Species Act? If the decisions have already been made, would later environmental reviews be real or simply an illegal charade?
Part of the problem may be that the work group is not chartered as a federal advisory committee, even though it is giving advice and guidance to four federal agencies (U.S. Forest Service, Fish & Wildlife Service, National Oceanic and Atmospheric Administration, and Bureau of Reclamation). The Federal Advisory Committee Act\12 ensures that advisory committees are accountable to the public by maximizing public access to committee deliberations and minimizing the influence of special interests. If this law applies to the work group, a whole range of public notice and participation requirements also apply: meetings must be open to the public, meeting transcripts must be available to the public, group membership must be fairly balanced in terms of interests represented, and so forth.
Aside from such procedural concerns, questions remain about how much the independence of regulatory agencies is compromised by participating in the work group.
How, for example, can the Department of Ecology, which oversees water rights, or the Forest Service, which manages the Wilderness Area, still make independent, even-handed decisions? No one knows.
At the same time as the work group switched from consensus to majority rule, it also adopted a requirement that members must screen their opinions with the group before publicly airing them. One member, speaking anonymously, saw this as “a threat to freedom of speech” and voted against it. This gag rule prompted other members to resign.
Despite these concerns about how the work group conducts business, it has been busy.
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12. 5 U.S. Code App. 1 Public Law 92-463.
WORK GROUP PROPOSALS
The work group has developed two proposed projects. They go by the names of the “Alpine Lakes Optimization, Modernization and Automation project” (“Optimization plan”)\13and the “Eightmile Lake Dam Restoration project” (“Eightmile plan”)\14. Together they are called “the Icicle Strategy.” These projects involve constructing, reconstructing, or raising dams on two wilderness lakes and adding further structures at five other wilderness lakes, so that those lakes, all in the Icicle. would become or be enhanced as on-demand reservoirs.
The Optimization plan relates to Nada Lake, Upper and Lower Snow Lakes, Colchuck Lake, Eightmile Lake, Upper and Lower Klonaqua Lakes, and Square Lake. As the name implies, the Eightmile plan only relates to Eightmile Lake.
The basic idea of the Icicle Strategy is to build or raise dams on Eightmile and Snow Lakes, to automate these dams and existing dams on other lakes, and, under one of the proposed alternatives, to blast a tunnel or siphon to drain Upper Klonaqua Lake into Lower Klonaqua Lake. Automation would allow remote operation of penstocks on all dam to release specified amounts of water. This extra water would flow down existing streams into the Icicle River, where the irrigation district or the fish hatchery would take it out near the mouth of Icicle Canyon.
As water levels in the lakes rise and fall, as in any reservoir, they would flood or expose dead zones along the shore. Keechelus Lake beside Interstate 90 east of Snoqualmie Pass, with its exposed old stumps and muddy shoreline, illustrates on a larger scale what a mountain lake looks like when it is dammed and turned into a reservoir.
Both work group proposals, if adopted, contain options about how much water levels would fluctuate. Not only would this depend on the height of proposed dams, but whether construction would also lower the natural outlets, so that the irrigation district could draw down lake levels even further. On Upper and Lower Snow Lakes, for instance, the proposal is to raise lake levels by 5 feet and draw down Lower Snow by another 3 feet. That would cause a vertical variation in lake level of 8 feet.
Eightmile Lake could vary even more. Options call for raising the lake level 4 or 5 feet, and lowering the current outlet by 19 to 22 feet, for a maximum fluctuation in water level of 24 to 27 vertical feet!\15
The work group does not know how long it would take to refill the reservoirs after any draw-down.
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13. Alpine Lake Optimization and Automation (Mar. 2015)
14. Eightmile Lake Storage appraisal
15. New Dams & Diversions in the Alpine Lakes Wilderness? Part 4 (January 7, 2015), see note 7.
ENVIRONMENTAL REVIEWS
These proposals require environmental reviews and decisions. The Columbia River office of the Department of Ecology and Chelan County's Department of Natural Resources are acting as lead agencies for the work group under the State Environmental Policy Act.
As a first step, in February 2016 they formally announced that the Icicle Strategy could have a significant effect on the environment--a determination that they were legally required under the circumstances to make.\16 Ecology and Chelan County then announced plans to prepare a programmatic environmental impact statement for the whole Icicle Strategy. Such a programmatic statement studies impacts and issues common to all projects, but then specific projects, such as raising the Eightmile Lake dam, would later require individual analysis.
Together with this announcement, Ecology and Chelan County released a checklist of what they saw as the potential impacts of their Icicle project.\17 This checklist acknowledged that the Icicle Strategy had "the potential to affect recreational aesthetics by altering lake levels," while also asserting that the proposal was "expected to improve views of Icicle Creek, Eightmile Lake, and the Alpine Lakes." It warned that "a limited number of helicopter trips may be utilized for the transport of personnel and equipment to and from the Alpine Lakes."
The initial maps accompanying this checklist depicted the seven wilderness lakes as "reservoirs."\18, as did the work group's website.
Proponents held two public open houses (one of them at the request of conservationists) and then invited comments on the scope of what the environmental impact statement should cover.
This prompted a number of public comments. Most revolved around two issues--whether the Wilderness Act allows expansion of existing dams or new dams on lakes within the Alpine Lakes Wilderness, and the extent and nature of the irrigation district's water rights on those lakes.\19
When the comment period ended in May 2016, the proponents started work on a draft environmental impact statement. Two years later, they released it.
More comments and one public hearing followed. Again, conservationists and the public pressed the twin questions of whether dam construction was allowed in the Alpine Lakes Wilderness and whether the irrigation district really had the grandfathered water rights it claimed.
The final programmatic environmental impact statement, released January 3, 2019, dodged both questions. It retreated from some of the group's more controversial proposals, such as bigger dams on Upper and Lower Snow Lakes, and a tunnel to drain Upper Klonaqua into Lower Klonaqua Lake. But it still called for rebuilding the Eightmile Lake dam to a higher level, and assumed without discussion that the irrigation district could legally do that.
It also proposed remote-control devices on several wilderness lake dams, raising questions about whether those devices would allow the irrigation district effectively to expand its water rights by withdrawing more water.
Before any specific projects can proceed, they still will require individual environmental impact statements under state law. If the work group or the irrigation district need any federal approvals or permits, and they certainly will, the federal agencies involved, such as the US Forest Service, could be required to go through an equivalent review process under the National Environmental Policy Act.
The fundamental flaw in the programmatic EIS is that by ignoring the legal issues raised about construction in a wilderness area and the irrigation district's water rights, it assumes they will somehow go away.
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16. www.co.chelan.wa.us/files/.../icicle.../SEPA/Icicle%20Strategy%20DS%20signed.pdf
17. www.co.chelan.wa.us/files/icicle.../SEPA/Icicle%20Strategy%20SEPAChecklist%20Signed.pdf
18. The Work Group has since withdrawn that map, but Dam projects begin environmental scoping, Alpine issue 1 (2016), includes a copy of it.
19. Comments filed by the Alpine Lakes Foundation with Chelan County on Feb 20, 2016 are representative.
WATER RIGHTS – initial grants
The Icicle Irrigation District, predecessor to the current irrigation district, began operations in 1915. In 1926 it applied for the right to divert water from Eightmile Lake at a rate of 25 cfs (cubic feet per second), 2,000 acre-feet per year for seasonal (June 1st to October 1st) irrigation. It made similar applications around the same time for Colchuck and Klonaqua Lakes.\20
After public notice, which stated again that the application was for irrigation purposes, the State Supervisor of Hydraulics issued Permit Number 828 in January 1927 for the requested amount.
The irrigation district also needed approval to change the lake levels. It sought permission from the state Commissioner of Public Lands to raise and lower the lake levels at Eightmile, Colchuck, and Klonaqua Lakes, explaining that it needed this because of inadequate summer flows for irrigation.
The Department of Public Lands approved this request in an October 1927 order that allowed the irrigation district to inundate lakeshores on the three lakes. This order did not specify how high the lakes could be raised or how low they could be dropped.
In 1927, Chelan County Superior Court adjudicated water rights to Icicle Creek and its tributaries. This adjudication mainly focused on Snow Creek, with no testimony on water rights at Eightmile Lake. Yet, the 1929 court decree affirmed the irrigation district’s water right under Permit Number 828 in the amount of 25 cubic feet per second, 2,500 acre feet per year. The decree affirmed similar permits for Colchuck and Klonaqua Lakes. It added that these water rights were "inchoate but may be perfected by compliance with provisions under which the permits were issued; that these rights for storage of water under said permits do not affect the water rights of any other claimant herein reported."\21
The irrigation district’s water rights stem from these permits and decree.
The Leavenworth National Fish Hatchery was created by Congress in 1937 for the purpose of mitigating the impact of Grand Coulee Dam on upstream migratory fish populations.
In 1942 the state issued a reservoir certificate to the fish hatchery allowing it to dam Snow Creek to create a reservoir. The reservoir right is for 16,000 acre feet. The irrigation district holds senior rights to this water. The fish hatchery agreed to provide 750 acre feet per year to the irrigation district in exchange for its agreement to give up rights to 1,000 acre feet of Snow and Nada Lake storage. The reservoir right is restricted to the months of “July through October inclusive” for the purpose of “supplementing supply for hatchery and holding pools.”
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20. These rights are summarized at page 7-10 of the Alpine Lakes Storage Optimization Plan, see note 13.
21. “Inchoate” rights are those that are not fully developed. Something else must be done – in this case, actual storage and use of the water – before those rights are perfected.
WATER RIGHTS – actual use
The irrigation district started clearing and excavation for an Eightmile Lake dam in mid-1927. Sometime after completing the dam in October 1929, the district filed a notice of completion. The filing date on it appears to be wrong. It probably was filed in 1930, but it was stamped 1939. The Remarks section said: “work completed providing for gravity flow draw down of Lake of 25 feet.”
On a separate sheet the irrigation district described the work as follows:
"Cut was made 25 feet deep in outlet channel, creosoted wood stave pipe 30 inches in diameter with standard reservoir cast iron gate installed. Gate thoroughly embedded in concrete and concrete cut-off wall placed in channel approximately 50 feet down the stream from control gate.
“The lake has a natural outlet channel some 30 feet below normal high water and due to difficulty in securing water tightness in formation of slide responsible for the lake dam was not constructed to height first intended, the District preferring to use water pumping equipment for securing full appropriation of water during period of extreme drought."\22
In other words, because the dam of natural material at the lake’s outlet--a typical mix of logs and silt--leaked (“difficulty in securing water tightness”), the irrigation district was unable to build a dam high enough to store as much water as planned.
Based on its notice of completion, the irrigation district received a Certificate of Water Right on August 21, 1930 allowing it “to use waters of Eight Mile Lake for the purposes of irrigation.” Similar certificates were issued for use of water from Colchuck and Klonaqua Lakes.\23
On each of these three lakes it was authorized to store and use 2,500 acre feet of water per year. In fact, its estimated usage has been considerably less. According to its own documents, it has only stored and used 1,375 acre feet at Eightmile Lake,\24 1,570 acre feet at Colchuck,\25 and 1,920 acre feet at Lower Klonaqua.\26 The irrigation district has never stored or used water in Upper Klonaqua Lake.\27
The Eightmile Lake dam deteriorated over the years. The gate valve stopped working decades ago. Since then, the irrigation district has mainly relied on a gravity flow to obtain water from the lake. As detailed in the Alpine Lakes Optimization Plan, facilities at all the lakes are fairly primitive.
Staff from the irrigation district or fish hatchery hike into each lake at the beginning of each irrigation season, and manually open the drain holes or gates. Throughout the summer, every adjustment in the draw-down level on a lake requires another hike. Some lakes are adjusted more often than others because they are easier to access. At the end of the irrigation season, workers hike in a final time to shut everything off. How much water they have actually stored, diverted, or pumped from any of these lakes on an annual basis is uncertain and a likely subject of dispute, but, as detailed above, it is substantially less than the amount the irrigation district originally was entitled to take.
Because water diverted or pumped from the lakes flows down naturally in the streams and into Icicle River, the quantity of water that the irrigation district or hatchery actually use is not really measured by how much they store and release from the lakes, but by how much they take out of Icicle River. In any given year, this could be more or less than the amount of water they have stored and released from the lakes.
In 2004 the Montgomery Water Group prepared a water management plan for the Leavenworth fish hatchery. Montgomery tried but could not obtain natural base flows for Icicle River because the irrigation district had not kept records on when it opened valves at any of the lakes.
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22. Aspect Consulting Memorandum, Review of Eight Mile Lake Storage Authority, page 4 (Mar 5, 2014).
23. See Table 1 of Alpine Lakes Storage Optimization Plan, see note 13.
24. Alpine Lakes Storage Optimization Plan, page 22, see note 13.
25. Id at page 27.
26. Id at page 16.
27. Id at page 17.
CONFLICT WITH WILDERNESS
Congress passed and President Gerald Ford signed the Alpine Lakes Area Management Act in July 1976. This act designated the Alpine Lakes Wilderness and certain additional lands called the “Intended Wilderness” that automatically became part of the Wilderness once the federal government acquired intermingled private lands. As these private lands were later acquired,\28 they and the adjoining federal lands included in this Intended Wilderness designation became part of the Alpine Lakes Wilderness. Thus, all of the lakes and lands covered in the Icicle Strategy are now part of the wilderness.
This act provides that lands designated as or added to the Alpine Lakes Wilderness shall be administered in accordance with the Alpine Lakes Area Management Act and the Wilderness Act, “whichever is the more restrictive.”
The act required a wilderness management plan with a special study of the Enchantment Lakes area as part of that plan, but otherwise did not specify how the Alpine Lakes Wilderness should be managed. As a result, management of the Alpine Lakes Wilderness is governed by the Wilderness Act.
Section 4(c) of the Wilderness Act prohibits structures or installations within a wilderness, “subject to existing private rights.” In the absence of existing private rights, Section 4(d)(4) requires Presidential approval to establish and maintain reservoirs within wilderness areas.
Courts have held that Congressional awareness at the time it created a wilderness area that a pre-existing dam was in the area declared wilderness does not create an implied exception to the Wilderness Act prohibition on structures.\29 Courts also have held that this prohibition on structures that are not privately owned also applies to rebuilding, maintaining, or repairing them.\30
The Alpine Lakes Area Management Act directed the US Forest Service to prepare a management plan. It did so in 1981. The Alpine Lakes Land Management Plan contains a separate Wilderness Management Plan as Appendix B.\30 On page 162 of this plan, on the subject of Land Occupancy and Structures, it says:
* * *
7. No roads, powerlines, telephones lines, water flow maintenance structures, reservoirs or other improvements will be permitted, except as authorized under Section 4(d) of the Wilderness Act.
8. Current water diversions will not be expanded. They will continue to be maintained by primitive means unless an environmental analysis indicates that the work cannot be accomplished without motorized equipment. . . .
* * *
On page 164, under the subject of Water, it says:
1. Except as provided in Section 4(d)(4) of the Wilderness Act, watersheds will not be altered or managed to provide increased water quantity, quality, or timing of discharge.
* * *
The Icicle work group appears unaware of these provisions and oblivious to issues raised by the Alpine Lakes Wilderness. It was asked to form a wilderness subcommittee, but dropped the idea without discussion in December 2014.\32 It often failed in meetings to acknowledge wilderness issues or even include the Alpine Lakes Wilderness boundaries in its presentations and documents. Although all the lakes covered by its Icicle Strategy are with the Alpine Lakes Wilderness, the Determination of Significance does not mention the wilderness area, and does not use the word “wilderness” in its list of issues to discuss.
A report reviewing the past decade of the Department of Ecology’s Office of Columbia River, comments on the Icicle Strategy with this observation:
“It is not clear that the 2006 Washington legislation that established the OCR [Office of Columbia River] envisioned that a Washington state government agency would support this type of intrusion into one of the state’s most valued natural areas.”\33
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28. Alpine Lakes Area Acquisitions Final Environmental Impact Statement, U.S. Forest Service (1979).
29. High Sierra Hikers Ass’n v. United States Forest Service, 436 F. Supp. 2d 1117 (E.D. Cal.2006).
30. Ibid.
31. This plan was later merged by reference and without change into the Mount Baker-Snoqualmie and Wenatchee National Forest management plans.
32. Dam projects begin environmental scoping, Alpine issue 1 (2016).
33. Power Consulting, Department of Ecology Office of Columbia River: The Last Ten Years, page 30 (Missoula, December 3, 2016).
EIGHTMILE LAKE EASEMENT
Following passage of the Alpine Lakes legislation, the US Forest Service started to acquire private lands designated by Congress and add them to the Wilderness. This led to a 1990 land exchange in which the federal government obtained the irrigation district's lands at Eightmile Lake. At that point they became part of the Wilderness.
The deed of these lands from the irrigation district specified that it reserved its rights under water right certificate 1228 and the Order by the Commissioner of Public Lands.
In exchange for this deed, the Forest Service gave the irrigation district an easement to access Eightmile Lake by motorized transport or aircraft "for the purposes of maintenance, repair, operation, modification, upgrading and replacement of all facilities" at the lake. It specifically allowed the irrigation district to regulate the water level. The irrigation district could use these rights "in such manner as not unreasonably to interfere with its use by the United States, its authorized users or assigns, or cause substantial injury thereto," but the irrigation district could not "materially increase the size or scope" of its facilities without the Forest Service’s written consent.\34
The easement would only allow the irrigation district to use existing rights; it could not expand them. The Forest Service would have no authority via an easement to enlarge the irrigation district’s rights beyond those it retains under the Wilderness Act.
The Forest Service and irrigation district have different views about how to interpret the deed and easement that they exchanged. For example, in the Spring of 2018 the Forest Service required the irrigation district to helicopter construction equipment into the lake for emergency repairs on the dam rather than drive that equipment over land through the wilderness.
The irrigation district publicly claims that it is the "land owner" of Eightmile Lake and that it is going to "fix Eightmile Lake whether people like it or not."\35 Yet, the Forest Service has insisted that the irrigation district comply with various federal laws before it approves any work at the lake. The irrigation district also complains about the lack of clarity over what procedures are required for it to seek the Forest Service approvals that it argues should not be required.
It is not clear how these disputes will be resolved.
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34. The easement’s language is recited in Aspect Consulting Memorandum, Review of Eight Mile Lake Storage Authority (Mar 5, 2014).
35. Bekker, see note 11.
USE IT OR LOSE IT
Washington follows western water law to the effect that a water right may be abandoned or forfeited through non-use. This principle is established both in statues and court decisions.\36 For example, in Okanogan Wilderness League v. Town of Twisp and Department of Ecology, the State Supreme Court ruled in 1997 that Ecology could not approve a request by the town of Twisp to change the point of diversion for its surface water right because Twisp had abandoned that right and therefore it was no longer valid.\37
Opponents of the Icicle Strategy contend that this principle applies to the irrigation district’s water rights. To the extent that the district has not put those rights to actual beneficial use, it has lost them.
Creation of the Alpine Lakes Wilderness underscores this position. The Wilderness Act prohibits structures or installations within a wilderness, “subject to existing private rights.” To the extent that the irrigation district had already forfeited or abandoned its water rights when Congress created the wilderness, the district cannot blast tunnels or raise dams now. They clearly are “structures or installations.”
Everyone agrees that the irrigation district is entitled to as much water for irrigation purposes as it was using for those purposes when Congress created the wilderness in 1976. But this does not mean the district can use more now than it used before--even if it claims that its water right gave it more. No matter what the original water right said, the irrigation district cannot take more water now than it did in the past. The Wilderness Act protects existing private rights, but that does not grant permission to expand those rights.
Moreover, Congress probably intended when it created the Alpine Lakes Wilderness to reserve any unused water rights for wilderness purposes. This is part of the so-called Winters doctrine, which recognizes that, when federal land is set aside for a specific purpose, Congress also intends to reserve water to fulfill that new purpose.\38
The district claims that the usual use-or-lose rules do not apply in situations where water is only used during drought conditions, but this claim is questionable.
The Icicle Strategy poses other problems.
The district’s water right is for irrigation purposes. This is clear from nearly all the documents on which it bases its water rights. Surprisingly, it concedes that it does not currently need more water for irrigation! Instead, it proposes to make extra water available to the town of Leavenworth for domestic purposes.\39
This raises two questions. First, a water right is usually limited to the purpose for which it was granted. Second, agricultural water rights are seasonal--farmers irrigate only when crops need water. Both the irrigation district’s and the fish hatchery’s rights are expressly seasonal. By contrast, domestic water consumption is much the same year round.
Just as the Department of Ecology could not change the point of diversion for water rights that Twisp had abandoned, the department cannot switch water rights from one use to another when they have been forfeited.
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36. Revised Code of Washington 90.14.160.
37. Okanogan Wilderness League v. Town of Twisp and Department of Ecology, 133 Wn.2d 769, 947 P.2d 732 (1997). This decision is based on common law abandonment, which is independent of the foregoing statute.
38. This doctrine stems from Winters v. United States, 207 U.S. 564 (1908). The U.S. Supreme Court has applied it more recently in U.S. v. New Mexico, 438 U.S. 696, 702 (1978); Cappaert v. U.S., 426 U.S. 128 (1976); and Arizona v. California, 373 U.S. 546, 601 (1963).
39. See earlier discussion in Lead Up to Dispute.
TURNING A PROBLEM INTO A SOLUTION -- The Fish Hatchery
The Leavenworth National Fish Hatchery is not seeking more water, but the Work Group is seeking more water in part because of the hatchery.
The reason for this paradox is that the hatchery is the second largest diverter of water out of the Icicle after the irrigation district. Their combined diversion reduces the Icicle’s instream flow below levels that fish need during dry months of the year. So the hatchery, which was built to produce more fish, is actually harming them. The Work Group’s solution is to dam and divert more water from lakes within the wilderness.
But the better solution would be to scale back the hatchery’s water use, and that is possible.
A federal court ruled in January 2017 that the hatchery has been operating without a valid Clean Water Act discharge permit since 1979. In May 2017 the court set deadlines for the hatchery to meet pollution standards or obtain a discharge permit.
This decision is a big step in the right direction. If the Hatchery upgrades its fish ponds to the circular/reuse variety that are now considered state of the art, it will be easier to meet Clean Water Act standards and it will need substantially less water to produce the same number of fish. That will benefit fish in the Icicle without causing more harm in the Alpine Lakes Wilderness.
A DIFFERENT SOLUTION?
Brian Richter, Nature Conservancy’s lead scientist on water, recently said: “More than 30 percent of the planet’s water resources are over-exploited, in many cases to near exhaustion. In the past, local communities approached water scarcity from the supply side--drilling deeper in search of groundwater or pumping it in from other basins. But the only way to meet the growing demand is to be more efficient with how we use it.”
One way to do this would be to move the irrigation district’s take-out point downstream to the Icicle River’s confluence with the Wenatchee River. This alone would add some 117 cfs of new instream flow to a 6-mile stretch of the Icicle that currently faces some of its worst streamflow issues. Another would be to upgrade the fish hatchery. As discussed in the preceding section, if the hatchery converted to state-of-the-art systems, it would need substantially less water.
Ed Quinn, publisher of Colorado Central in Salida, offers a tongue-in-cheek critique of western water policy:\40
“Drought, in case you’re curious, is one of those technical terms for what happens when you have enough water for 1 million residents, but not enough for 4 million, let alone the 10 million that the developers would like to see.
“The traditional principles that have, for the last century or so, pretty well defined water policy in the West:
“Whenever there’s a water problem, it is always the fault of California.
“In all water development, the federal government should cover most of the cost.
“No water project is ever built to assist developers and sub-dividers. (but they usually do)
“Any solutions to water-supply problems should feature new structures.”
Exactly as Quinn observed, the Icicle Strategy is an effort to solve water-supply problems with new structures. This is the traditional supply-side answer to water shortages, both real and imagined.
The Icicle Strategy does propose metering and pipe replacement for the City of Leavenworth, but these appear almost as after-thoughts. Conservationists asked the work group to consider conservation measures, such as restrictions on watering lawns, which have worked in the Seattle area to reduce total water consumption even as the population grew. But the work group offers no analysis of how much water could be saved by various conservation measures or by promoting water markets that facilitate selling and trading water rights.\41 The Icicle Strategy is preoccupied with new structures designed to produce more water.
This is supply-side thinking at its worst on a water issue that deserves a great deal more.
As Patricia Mulroy, former general manager of the Southern Nevada Water Authority, notes: "We always look for a silver bullet. That's how the West was built--one silver bullet project after another. [But] that's not what the future is about."\42
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40. Water Principles of the West begin with blaming California, High Country News, page 7 (April 28, 2003).
41. See Zack Colman, How Water Swaps Help the West Manage a Precious Resource, Christian Science Monitor (March 8, 2017).
42. Jeremy P. Jacobs, Dams: 'Relics' or vital to an 'all of the above' fix? E&E News (June 19, 2017).