July 23, 2023
The decision not to make water from Eightmile Lake available to Leavenworth appears to mean more than what the Dept. of Ecology has said.
The decision represents a major shift in the agency's previous position. Before inviting scoping comments in 2020, Ecology proposed that the Icicle Peshastin Irrigation District transfer part of its water right from Eightmile Lake to the city of Leavenworth. An official from Ecology's Office of Columbia River was admirably candid, saying that he hoped "there will be an opportunity to help the City of Leavenworth."
If Leavenworth keeps growing, it certainly will need more water. As its tourism expands, the city estimates it will need 24% more water over the next 10 years and 55% more within 20 years. Equally important from Ecology's standpoint, providing water to Leavenworth could settle a long-running lawsuit with the city. Indeed, settlement of that lawsuit was Ecology's stated purpose in forming the Icicle Work Group.
Yet, in its draft environmental impact statement (EIS) released this April, Ecology made a big switch. It admitted its initial plan was to consider "the possibility of transferring some portion of water available from the rebuild of Eightmile Dam to [Leavenworth] ... to resolve this lawsuit." But during the scoping process "several comments were received expressing concern over water from the Alpine Lakes Wilderness being used for municipal supply purposes."
Based on those comments, it concluded: "Ecology has determined that water will not be made available for ... municipal water supply use."
On its face, it is difficult to understand this reversal of Ecology's stated goal of finding water for Leavenworth -- a goal in which it has invested several million dollars -- simply because several commenters expressed concern about using wilderness water for municipal purposes. This sudden sensitivity to wilderness concerns also is hard to reconcile with Ecology's earlier proposed road through the wilderness to facilitate dam reconstruction and its continuing proposal to flood more of the wilderness with a higher dam.
A more plausible explanation for this change of position is that transferring some of the irrigation district's water to the city would require Ecology to formally evaluate the extent of the irrigation district's water right. Making that evaluation is something Ecology has studiously avoided.
The record on this is revealing. For years conservationists urged Ecology to examine how much of its water right the irrigation district had relinquished through decades of non-use. In 2020, after eight years of meetings and discussion, Ecology finally told the Icicle Work Group that it would evaluate how much water the irrigation district still had a right to store and divert at Eightmile Lake.
Ecology agreed to do this after disclosing a deal it had reached with the irrigation district. Ecology would foot most of the bill for rebuilding the Eightmile Lake dam in exchange for the irrigation district transferring to Ecology all water rights, to the extent it had them, over 1,400 acre feet. Ecology would then make some of that "extra" water available to Leavenworth. Ecology acknowledged that it would need to evaluate the scope of the district's water rights (called a tentative determination) to know how much water the irrigation district could transfer.
That never happened. A year later Ecology backtracked, offering only to discuss the irrigation district's water rights in its draft EIS. It apologized that its discussion would only be based on preliminary information because the irrigation district had not yet applied to change its water right. It dropped any mention of a tentative determination, and did not explain why it could do nothing except "discuss" the issue until the irrigation district applied to make a change.
Nothing more has been publicly said about a tentative determination, even though the irrigation district has not used some portion of its original rights since before Eightmile Lake dam collapsed years ago.
The draft EIS still proposes that the irrigation district transfer water in excess of 1,400 acre feet (if any), to Ecology, but now Ecology proposes to convert that extra water into a "trust water right" to improve downstream flows in Icicle Creek. That water would not be transferred to a specific user such as Leavenworth. In theory, it would stay in the stream.
Apparently it is Ecology's view that this change eliminates the need for a tentative determination of the extent and validity of the irrigation district's water rights in Eightmile Lake.
Stand back for a moment and look at the bigger picture. Ecology would rather avoid an evaluation that might show that the irrigation district has relinquished part of its water right, than to make more water available to Leavenworth that could settle its lawsuit. This appears to represent a strategic decision.
Recently Ecology has taken this a step further. During public meetings on the draft EIS, commenters complained about proposing a dam without first knowing how much water the irrigation district can legally store behind that dam. In response Ecology orally insisted that there has been no relinquishment of the district's water rights in Eightmile Lake.
This is the first time Ecology has made such a claim. How it came to this conclusion is unknown. It does not appear that Ecology has put this assertion in writing.
Perhaps the agency is relying on the so-called "multi-fill analysis", a new theory of water right usage that first surfaced during the draft EIS. But some observers suspect deeper reasons. The legislative mandate for Ecology's Office of Columbia River -- which has funded the Eightmile dam studies and proposals -- is to "aggressively pursue development of water supplies" in the Columbia basin. Any finding that the irrigation district has relinquished part of its water right would create a tension with this mandate. The political repercussions, some observers claim, could go all the way to Olympia. "Formally relinquishing the irrigation district's water right," they warn. "will reverberate in the state legislature."
Leavenworth appears to be the loser, but that may only be a setback. It already uses a right to withdraw some water from Icicle Creek for municipal purposes. Sometime in the future -- after stream flows supposedly have been protected -- some water law specialists foresee that Ecology might initiate some type of water reservation process that ultimately would allow Leavenworth to take more water from Icicle Creek.
The lawsuit between Leavenworth and Ecology may need to remain on the books a bit longer. But if that allows Ecology to duck the question of relinquishment and the ensuing repercussions, Ecology appears to reckon that might be worth it.