July 21, 2024
Washington State's Department of Ecology has given what appears to be its final word on relinquishment of water rights at Eightmile Lake.
For years many conservationists have argued that the Icicle Peshastin Irrigation District has never used the 2,500 acre feet per year that were adjudicated to its predecessor in 1929. For that reason, they have argued based on settled principles of water law, that any replacement dam on Eightmile Lake should store no more water than the irrigation district actually used. The extent of that use, conservationists contend, should be defined before designing a new dam. Any other approach would put the proverbial cart before the horse.
The irrigation district has admitted that before 1990 its maximum annual withdrawal was 1,700 acre feet. After unrepaired damage to its dam in 1990, observers estimate that the district's annual withdrawal never exceeded 1,400 acre feet. The irrigation district acknowledged this was all it needed for irrigation purposes. Yet, despite repeated calls by conservationists for Ecology to address the relinquishment issue, the agency avoided those requests and proposed dam designs that assumed no relinquishment ever occurred. At the end of its environmental analysis, Ecology selected as it preferred alternative a dam that would allow an active storage volume of 2,000 acre feet.
In its response to comments on its draft environmental impact statement (EIS), Ecology offers several explanations for this result.
First, it claims that an EIS is not the right place to evaluate whether there has been any relinquishment. We made the same point here in a February 22, 2022 article: "resolving water rights as part of an environmental review is a bit like litigating a lawsuit at a fashion show." We argued, instead, that relinquishment should be resolved before any EIS. See Ecology's Dilemma, Feb 22, 2022. The agency declined to do that.
Second, Ecology asserts that the need for a tentative determination of water rights, meaning a decision on whether there has been any relinquishment, is triggered when an owner of water rights applies to change those rights. Ecology explains: "Since no change application has been filed by [the irrigation district] for the Eightmile Lake water right, the requirement for a tentative determination of the extent and validity of this water right has not been triggered."
Two years before Ecology started its EIS process, the irrigation district considered transferring part of its water right to the agency. Ecology recognized that a transfer would trigger the need for a tentative determination, and it planned to make one. But plans changed. Instead of a transfer to Ecology, the irrigation district decided to donate part of its water right to the State of Washington to improve stream flow. Such a donation, Ecology reasoned, did not require a tentative determination of water rights, so it dropped the idea of making one.
Yet, the possible need for a tentative determination resurfaced when Ecology proposed that some of the increased stream flow made possible by the irrigation district's donated water might be made available to the City of Leavenworth. Might this be a transfer that revived the need for a tentative determination? Ecology quickly laid that to rest by declaring that no water from Eightmile Lake would be made available to Leavenworth.
Skeptics remain dubious, especially in light of a recent litigation settlement between Ecology and the City. In exchange for Leavenworth dropping an appeal, Ecology promised to explore whether some of the irrigation district's donated water might be used not only to improve stream flow, but also "mitigation of new out-of-stream water use," and this might "enable the issuance of one or more new water right permits to the City." See Leavenworth and Ecology bury the hatchet, posted here on Dec 23, 2023.
Ecology now explains that it will perform a sort-of relinquishment analysis sometime soon. This will not be to review whether the size of the new dam is justified under Washington law, but instead to decide how much water the irrigation district is legally permitted to donate. The district plans to keep 1,400 acre feet for irrigation needs, so the only question will be how much water in excess of that it can give to the State. Ecology says it will make this determination based on how much of "the water right was exercised during the 5 years before the donation date."
One might be excused for wondering why Ecology could not make this determination before rather than after deciding on the size of the dam.
The claim that Ecology need not consider relinquishment until an owner applies to change its water right does not seem to square with RCW 90.14.130 which 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, . . . ."
In response, the agency points to a 2022 study by analysts hired by the irrigation district – not a study by Ecology. The agency says it has reached no conclusion on whether or not there has been any relinquishment, but notes that the irrigation district's study seems to show that the district has used its full water right based on a multi-fill approach. "Multi-fill" means the irrigation district can count toward its annual usage not only the water it stored over winter, but also water that flowed through Eightmile Lake during summer rain and runoff.
Ecology's own regulations specify that water rights should be measured based on filling a reservoir "once annually", but the agency claims that this applies only to rights arising after it adopted its regulation in 1960. Thus, Ecology concludes: "since there is no one-fill condition, and WAC 508-12-270 is not applicable to the right, IPID's multiple-filling of the reservoir has been lawful under its 1926 water right."
Hence, Ecology now concludes that the irrigation district appears not to have relinquished any of its water right over decades of reduced withdrawals, even though this multi-fill study was first made only in 2022. And because, says Ecology, the irrigation district arguably used its full water right if measured on a multi-fill basis, it may build a new dam that allows it to exercise that right going forward measured on a one-fill basis. By switching from one way of measuring to the other, Ecology greenlights a dam much bigger than the one in place for decades and on which the irrigation district's analysts claim it used its full water right. This is akin to qualifying for a loan in dollars and then paying in pesos.
So far as Ecology is concerned, this ends the debate over relinquishment.