November 23, 2020
No Presidential exception or federal approvals are needed, per the Forest Service.
The Icicle Peshastin Irrigation District's revised design for its dam on Eightmile Lake eliminates the need for an exemption from the Wilderness Act by the US President, and it requires no Forest Service approvals or consent.
Kristin Bail, Okanogan-Wenatchee National Forest supervisor, reported this at a virtual Icicle meeting on November 20. Supervisor Bail said the Forest Service Office of General Counsel had reached this conclusion after reviewing documents relating to the irrigation district's prior ownership of the area and its revised dam design.
Previously, the Forest Service position was that the dam design would conflict with the Wilderness Act unless the President granted an exception, a provision that the act allows but has never been used before.
We reported the previous Forest Service position here on May 23 in a news item titled "Eightmile dam needs federal approvals" and further discussed it on May 28 in "Why Presidential exceptions?"
The key difference that apparently changed the agency's position is that the irrigation district now plans to keep the siphon outlet from its rebuild of Eightmile Lake dam within the area that it previously owned. Earlier designs called for an outlet that extended out into national forest lands.
The irrigation district's former lands also are now part of the Alpine Lakes Wilderness, but the district conveyed those lands to the government under a special warranty deed that purported to reserve a number of rights. The irrigation district has contended, and the Forest Service now apparently agrees, that keeping the siphon outlet within that area of reserved rights allows the irrigation district to proceed without any federal approvals.
The Forest Service has changed its position in one other major way. Previously, the agency also said that any change in the level of Eightmile Lake that went above or below historic levels would also require federal approval, including a Presidential exemption. That view was not based on whether the irrigation district had relinquished any water rights--a state law question--but simply that changes in the lake level would affect the wilderness and thus require approval.
Supervisor Bail, claiming more expertise in water law, does not share that view. In her opinion, changes in the lake elevation and other wilderness issues would become relevant only if the irrigation district were operating outside the area of its special warranty deed. Because it now proposes to stay within that area, these other issues do not arise. Thus, lowering the lake by as much as 16 feet, as now proposed by the irrigation district, and even more during a declared drought, would be acceptable.
Conservationists have raised a number of questions about the special warranty deed.