WaterPlanet.ws - Document

Home | Currents | Resources | About | John & Rachael Paschal Osborn
Title: Tribal Water Summit
Author: Rachael Paschal Osborn
Date: May 16, 2003 | ID#: 031516
Category: Water Law and Policy
Keywords: water law, municipal water, HB 1338, overallocation, Department of Ecology, Methow Valley, Methow Valley Irrigation District, MVID, water diversions 

visits since August 19, 2003

Tribal Water Summit:

Northwest Indian Fish Commission Legislative Briefing, May 16, 2003

by Rachael Paschal Osborn


1. Interconnectedness of Water Policy and Science

When the legislature acts, it needs to understand the implications of its actions for all of the water code. Everything is connected to everything else, both physically and legally.

Physical connections between water quality and water quantity are front and center in the debate over SB 5028. Of course quantity and quality are connected through temperature, dissolved oxygen, and, very importantly, assimilative capacity for permitted polluters.

Legal connections also exist. Indeed, the effectiveness and efficiency of the Prior Appropriation system is based on the concept that, when senior water users fail to use their water, or waste it, or speculate in it, then junior right holders are entitled to use that water.

Special interests, especially agricultural and municipal water right holders, frequently ask for changes in the water code for their own particular benefit. But bills such as HB 1338, as well as recent proposals to eliminate the "use it or lose it" law, may have profound effects on other water users. It is critical that the legislature consider the overall impacts of its actions before "tinkering" with the water code for the benefit of any single user or group of users. Washington needs overarching water law reform, not piecemeal changes that benefit the few and will exacerbate our water woes.

2. Misperceptions about State Water Management

There is a misguided belief by many legislators that Ecology has state water management "under control." Nothing could be further from the truth.

Approximately 250,000 water right claims, permits, and certificates have been issued or registered in Washington, along with an estimated 500,000 exempt wells. But Ecology has never assessed how much water has been allocated versus how much is actually available to fulfill existing rights AND maintain aquatic health in our rivers and aquifers. As a result, nearly two dozen salmon and trout species are listed as threatened and endangered &endash; affecting nearly every river system in the state. Also, hundreds of polluted rivers and streams are listed as water quality-impaired on the state's 303(d) list.

Nearly 10,000 unperfected municipal water right certificates were issued (illegally) without adequate study of water availability and impacts on other water users and the public interest (i.e., environmental impacts). These are the water rights that municipal water purveyors seek to validate through HB 1338.

The bottom line: we have a statewide crisis of rivers and streams that do not have adequate water flowing in them. This problem is a direct result of historic water allocation policies. Further, many aquifers in Washington are now being mined. These problems need to be solved first, not last. And when they are solved, the state will have solved many problems, including potential financial and environmental liabilities arising from Tribal water rights, the Endangered Species Act and the Clean Water Act.

3. The MVID Case (and what it means for SB 5028)

SB 5028 is motivated by an enforcement action brought by the Department of Ecology against the Methow Valley Irrigation District. It is important that the legislature understand that a reasonable agency order is now being used by the agricultural industry and its lobby to radically change state law. Every legislator should understand the background of this case.

Methow Valley Irrigation District (MVID) has for many decades depleted flows in the Methow and Twisp Rivers, sometimes drying the rivers up altogether and blocking access to hundreds of miles of habitat in the upper watersheds. This has been tremendously harmful to the salmon that spawn, rear and migrate in the Rivers.

Up to 90% of the water that is diverted by MVID leaks out of its ditch or is lost through poor water management. In the late 1980's, as the terrible plight of salmon became evident, Ecology began taking action to improve the MVID diversions. Ecology issued enforcement orders, worked with Methow Valley citizens on the first (failed) watershed plan, and with the Bonneville Power Authority, offered millions of dollars to MVID to rehabilitate its ditch.

Through it all MVID has steadfastly refused to do what is necessary to prevent the harm it is causing to the Methow and Twisp Rivers. As a last resort, Ecology finally issued an order directing the MVID to limit its diversions and leave enough water in the Rivers to meet basic water quality needs. If MVID would install a reasonably updated irrigation system (fully subsidized by the public), Ecology's order would leave MVID with more than enough water to serve all lands within the district.

The agricultural industry has, not surprisingly, failed to inform the legislature of the facts behind SB 5028. Ecology has never before issued a water quality order of this nature, and it did so in the MVID case only after every other strategy had failed. Nonetheless, agricultural has misrepresented the MVID case, using it to push an agenda that goes far beyond addressing what Ecology has actually (and very reasonably) done. Indeed, recent versions of SB 5028 appear to violate federal water quality laws.

Each legislator should look closely at the facts of the MVID case before deciding that it is unreasonable for the state to use water quality laws in a way that impacts water diversions. SB 5028 should be rejected.