July 9, 2020
Washington State's Department of Ecology has no plans to resolve the dispute over water rights at Eightmile Lake before the dam is rebuilt.
Only after the Icicle-Peshastin Irrigation District requests a change in its water use will the Dept. of Ecology address the extent of the irrigation district's rights. And it is not clear when that might be. Until then, plans proceed to design and rebuild the Eightmile Lake dam.
At issue is 800 acre-feet of water—enough to flood 606 football fields, including end zones. Each would be under a foot of water, with some left over for several basketball courts.
That is how much additional water the irrigation district wants to withdraw from Eightmile Lake each year. Despite some recent wriggling on this point, the irrigation district has never stored or withdrawn more than 1,700 acre-feet before, but it claims a right to 2,500 acre-feet based on a grant in the 1920s. Conservationists counter that the irrigation district has forfeited or relinquished the 800 acre-feet difference, based on nearly a century of non-use. But the irrigation district plans to rebuild the dam with a lower and longer siphon that will allow it to withdraw its claimed "historic right" to the full 2,500 acre-feet.
The Department of Ecology manages and adjudicates water rights. At a July 6, 2020 meeting of environmentalists, officials, and the irrigation district, representatives from the Dept. of Ecology's Office of Columbia River explained when the department would determine the irrigation district's water rights.
It would make a "preliminary" analysis before approving the dam design as safe, and before preparing an environmental impact statement, but this preliminary analysis would only be what might be called "a quick look" to determine if there was some underlying water right. Officials stressed that this preliminary analysis would not validate or pre-judge a final determination on the extent of the irrigation district's water rights.
That final decision would come only after the irrigation district applied for a change in its use. When might that be? The only hint was one official's prediction that the irrigation district would need "an adequate reservoir" before it would apply. In short, the dam would be built before the irrigation district applied and the Dept. of Ecology considered the issue.
Officials were pressed for any exceptions to this policy. The response was that none of these events would warrant an earlier decision: the dam safety office's approval of the dam design, the State Environmental Policy Act process, or the Dept. of Ecology's substantial contribution towards to the cost of constructing the dam.
The only event that might trigger an earlier determination, per Dept. of Ecology officials at the July 6 meeting, would be if the irrigation district applied to transfer or convert some of its water rights. But allowing more non-agricultural water use would not make a difference, they said, even though the initial grant of water rights to the irrigation district's predecessor was for agricultural purposes.
What office or division within the Dept. of Ecology would make the final decision? It could be the Office of Columbia River, which has largely funded the Icicle work group and committed substantial funds to reconstruction of Eightmile Lake dam. Officials claimed at the July 6 meeting that they have not prejudged the water rights issue, but some environmentalists were openly skeptical. Neither the department's preliminary analysis nor its final determination would be a "public process."
As expressed at this recent meeting, the Dept. of Ecology views its authorizing statutes as allowing it to make a final water rights determination under the circumstances specified in those statutes. Implicit in this view is that it cannot make a determination under any other circumstances, regardless of what they might be.
The moving parts in this dispute raise come questions about the sequence of events. It appears most likely that the Dept. of Ecology and US Forest Service would complete their review processes under the state and federal environmental procedure acts first. Indeed, these laws would seem to require this. Then the Forest Service would need to issue special use permits, including the Presidential exception recently explained here. According to the Forest Service, the irrigation district must have these permits and Presidential approval before any change in the current dam's configuration. After the dam is rebuilt, the irrigation district supposedly would apply for a change in its water use and the Dept. of Ecology would then determine if the irrigation district has all the water rights that it claims.
Based on the Dept. of Ecology's apparent reading of the statutes and its authority, it will only decide the extent of the irrigation district's water rights at the end, not the beginning of this saga. Thus, the Presidential exception under the Wilderness Act—an unprecedented move with national implications—would be decided before anyone knows for sure if the irrigation district really has all the water rights that it claims. If the President grants that exception despite this uncertainty and the dam is then built, the outlet siphon as now designed will allow the irrigation district to take all the water it claims a right to take. There is no practical way to prevent this. After dragging the White House through this dispute, it seems likely that the irrigation district would then have what it wants before the Dept. of Ecology even considers the question.