Ecology's dilemma

February 22, 2022

How will the Department of Ecology resolve the relinquishment issue at Eightmile Lake in view of its own conflict of interest?

Many of those following this drama have claimed all along that you cannot -- you should not -- design a replacement dam at the lake until you know how much water you are allowed to store and withdraw. Yet, like a running back trying to evade tacklers, Ecology has dodged and weaved around this question for years. Even now, it remains unresolved how much the Icicle Peshastin Irrigation District has legally relinquished its water rights through decades of non-use.

The dodging and weaving may come to an end later this spring when Ecology releases its draft environmental impact statement on dam designs at Eightmile Lake, but Ecology still faces two big problems –- (1) what process will it use to resolve the relinquishment issue? and (2) how can it decide this objectively, in a way that inspires public trust, when it has its own stake in the answer?

The process answer should be straightforward. RCW 90.14.130 directs Ecology (using the term "shall", not "may") to determine the extent of any relinquishment "[w]hen it appears to the department of ecology that a person entitled to the use of water has not beneficially used his or her water right or some portion thereof, . . . ."

Conservationists have been hammering on this for years. After eight years of meetings and discussion on this topic, Ecology finally conceded late in 2020 that it would make a "tentative determination" of how much water the irrigation district may still claim at Eightmile Lake. Ecology made this concession after disclosure of the deal it had made in the meantime with the irrigation district. In exchange for Ecology's Office of Columbia River agreeing to pay or reimburse most of the costs of rebuilding the Eightmile Lake dam, the irrigation district agreed to transfer to Ecology all water rights, to the extent it has them, in excess of 1,400 acre feet. See our December 18, 2020 news item "State will take part of Eightmile Lake water." Ecology said it would need to make this "tentative determination" of water rights to know how much water the irrigation district could transfer.

So what happened to this "tentative determination"?

Apparently nothing. Instead, this past June, in its summary of the public's scoping comments, the agency said:

Ecology will provide a discussion of Water Rights and the status and implications of IPID's water rights in the Draft EIS, in the Water Rights section. IPID has not yet filed a Water Rights Change Application, so analyses described in the EIS will be based on preliminary information. Some level of detail that has been requested is not available, but the issue of the Districts' water rights will be comprehensively addressed in the Draft EIS.

The "tentative determination" has morphed into a "discussion." It now appears that whatever Ecology discusses or addresses about the irrigation district's water rights will be in the agency's draft EIS rather than in a separate process and will be based only on "preliminary information". Why Ecology is not using its authority to obtain full information is unclear. Even more bizarre, resolving water rights as part of an environmental review is a bit like litigating a lawsuit at a fashion show. An EIS is a review of environmental impacts; a water rights determination is a legal proceeding. And this hybrid approach still ignores the mandate of RCW 90.14.130.

Ecology's bigger problem stems from the stake it has chosen for itself in the outcome of this strange process and the conflict of interest that raises. With the irrigation district agreeing to transfer to Ecology whatever water, if any, it still can claim in excess of 1,400 acre feet, the more water Ecology finds that the district owns, the more water the district will transfer to Ecology.

This is not quite as suspect as the policy in frontier Washington of paying judges with a percentage of the fines they imposed, but it raises a serious problem.

Eleven years ago Ecology and the City of Leavenworth had a court fight over water rights. Leavenworth won a preliminary ruling, ironically relating to Ecology's authority to make tentative determinations. The two sides subsequently agreed to suspend the ensuing appeal to the Court of Appeals, while they searched for ways to settle their dispute. Settlement ideas have expanded, but the focus has always been on helping Leavenworth find more water. Indeed, this apparently was why Ecology's Office of Columbia River started funding and guiding the Icicle Work Group in the first place.

An official from that Office of Columbia River is admirably candid about this. In discussing what Ecology might do with the water it gains from the irrigation district's transfer, he says he hopes "there will be an opportunity to help the City of Leavenworth."

Whether that help will be enough to persuade Leavenworth to drop its appeal remains unknown. But the more water Ecology can claim from Eightmile Lake, the better those chances become. In short, in seeking to address the water rights issue, the agency will be both judge and beneficiary of its own decision.

Ecology has a dilemma. It must address this conflict of interest when it reaches a conclusion about the irrigation district's water rights at Eightmile Lake – and demonstrate that it has not been influenced by that conflict. Ecology needs to resolve the relinquishment issue solely on its merits, independent of who gains or loses from that decision. The agency will satisfy an understandably skeptical public only if its decision is supported by the facts, consistent with the law, and transparent enough to show that it has been completely objective and fair.