December 18, 2020
By paying to rebuild the dam at Eightmile Lake, a state agency will gain the right to some of its water.
The state Department of Ecology's Office of the Columbia River, whose mandate is to "aggressively pursue development of water supplies" in the Columbia basin, and the Icicle Peshastin Irrigation District have made a deal. In exchange for the Office of Columbia River agreeing to pay or reimburse most of the costs of rebuilding Eightmile Lake dam, the irrigation district will permanently transfer to that agency all water rights, to the extent it has them, over 1,400 acre feet.
We do not know when this deal was struck, or how much Ecology and the irrigation district haggled over what amount the state would pay on the dam rebuild or how much water the irrigation district would agree to transfer. By retaining only 1,400 acre feet, it is also not clear whether the irrigation district will still have enough water to serve the Wenatchee valley ranchers and orchardists who depend on it. Presumably this was a consideration.
In addition, it is not clear how much water will be transferred to Ecology because the full extent of the irrigation district's water right is disputed. Nearly a century ago the irrigation district's predecessor was granted the right to 2,500 acre feet per year from Eightmile Lake, but the irrigation district has never stored or withdrawn more than 1,700 acre-feet. Conservationists claim the irrigation district has relinquished the rest.
Until recently, Ecology had rebuffed requests to determine the extent, if any, of the irrigation district's relinquishment. But the irrigation district's plan to transfer part of its rights triggers a requirement for Ecology to make a tentative determination of how much water the irrigation district still owns. Part of the reason for this is to ensure that more water is not being used after the transfer than before.
In a case like this, we understand that the determination depends on how much water has actually been used. According to some water lawyers, a tentative determination by Ecology carries considerable weight, even though only a court can make a final determination of the extent and validity of a water right.
The Office of Columbia River has formed a multi-region team to gather and review records to determine the extent of the irrigation district's water rights. The information they plan to review, according to one official, includes water budget, hydrology, historic records, and dam safety.
Formally, this is not a relinquishment proceeding, but it would appear to have a similar effect. By determining the extent of the irrigation district's water rights, it also determines how much water in excess of 1,400 acre feet per year the irrigation district will be able to transfer to Ecology.
Because the irrigation district's water rights—however large they are—stem from such an early date, they are quite valuable. They are superior to any rights issued later to other users. In 1983 Ecology set the inflow stream rule for the Wenatchee River and its tributaries, which includes the Icicle. A water right junior to that instream flow is not usable for things like domestic supply, because an owner must show a reliable (i.e., non-interruptible) water supply to obtain a building permit. This means that a water right senior to the instream flow is not interruptible, and thus may be used for domestic supply, even if instream flow falls below minimums.
It is not clear what Ecology will do with this Eightmile Lake water. Its recent scoping notice does not address this issue. At a recent meeting, the parties discussed whether the irrigation district would sell the extra water to Ecology or put it in a permanent trust. Water placed in trust would remain in the stream for improved stream flow. Water sold to Ecology might be used for other purposes.
The Icicle Work Group supposedly will decide how the water transferred to Ecology will be used. Tony Jantzer, director of the irrigation district, warns that occasions could still arise when it might need more than 1,400 acre feet, especially during a drought. Currently it is not clear when or how such decisions will be made.
An official from the Office of Columbia River says "part of its mandate is instream flow," but he hopes "there will be an opportunity to help the City of Leavenworth."
This recalls one of the initial reasons for launching the Icicle Work Group. As Leavenworth has grown, water supply has become a bigger concern. More than a decade ago the city and Ecology disagreed over the size of the city's water rights, and whether Ecology had any say in that question. This sparked a lawsuit and a trial court decision in 2011 that undermined Ecology's authority to quantify certain water rights. The statewide implications were substantial, so Ecology appealed and then proposed a settlement that might vacate the trial court's ruling. That appeal has been in limbo ever since while the parties continued to search for a solution—more water for Leavenworth in exchange for vacating the court's decision and dropping the appeal.
It appears they may have found their solution at Eightmile Lake.