December 21, 2023
The City of Leavenworth and the Washington State Department of Ecology have settled their eleven-year-old lawsuit.
It started in 1995 as a dispute over Ecology's authority to regulate the city's water rights. That rumbled on until 2012 when Leavenworth sued Ecology in Chelan County superior court. After an adverse decision, Leavenworth appealed, but both sides agreed to suspend that appeal while they sought a settlement. In filings with Washington's Court of Appeals, Ecology's Office of Columbia River explained that it was co-hosting with Chelan County's Department of Natural Resources a group of stakeholders who called themselves the Icicle Work Group. Their purpose, through conservation and other means, was to find more water for Leavenworth, specifically 800 acre-feet per year.
For the past decade the appeal has remained in limbo while Ecology and Leavenworth filed progress reports with the court every six months. Since their initial reports, Ecology's Office of Columbia River has spent millions in appropriated funds to support the Icicle Work Group. In their most recent report this past March Ecology and the city reiterated their continuing "participation in and support of the Icicle Work Group as a non-litigation alternative process for finding water saving solutions in the basin and a basis for settling this appeal."
In recent years, their settlement effort has focused more on Eightmile Lake and the prospect of making some of its water available to the city. But that idea appeared to crash in April when Ecology announced in its draft environmental impact statement that it would not make any water stored by a new Eightmile Lake dam available to Leavenworth. That prompted some head-scratching about its reasons for this change of position. See Why the switch on water for Leavenworth? published here on July 23. It also required Ecology and the city to reevaluate what to do with the pending appeal.
This settlement is the result. Ironically, while the lawsuit that spawned the Icicle Work Group is now over, the Work Group lives on, and it has still not achieved the goal that was the reason it was formed. We are reminded of the warning that "The only thing we know about the future is that it is going to be different."
The settlement agreement itself, released to attendees at a recent Work Group meeting, does not identify specific projects, but seems without saying so to focus again on Eightmile Lake. It recites that Ecology and the Icicle Peshastin Irrigation District have been discussing the possibility of amending the irrigation district's water rights "that have been conserved through land use changes and water use efficiency measures." The irrigation district could transfer part of this "saved" water directly to Leavenworth or to the state's trust waters program to improve instream flow and "mitigation of new out-of-stream water use."
This in turn, the agreement says, "would enable the issuance of one or more new water right permits to the City."
The agreement recites that the parties' goal is to provide the city with an additional 721 acre-feet per year. They promise to strive in good faith toward this goal, but acknowledge that it is not an absolute requirement.
This settlement does not identify where the irrigation district might be able to transfer part of its "saved" water right, but Eightmile Lake is the only place where a new dam is currently being considered. The agreement makes no mention of the possibility that the irrigation district may have relinquished part of its water right at Eightmile Lake through decades of non-use.
Pursuant to this agreement, Leavenworth agreed to dismiss its appeal.
In a joint press release, Ecology and Leavenworth say they have "agreed to a continued relationship of cooperation and assistance toward the goal of enhancing the City's water rights portfolio and/or financing permanent water use efficiency projects with the goal of permanently expanding the City's ability to serve future growth."
In short, it appears that finding more water for Leavenworth is still the goal.