Indian Fish Commission Legislative Briefing, May 16,
Rachael Paschal Osborn
Interconnectedness of Water Policy and
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
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.
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.
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
Misperceptions about State Water Management
is a misguided belief by many legislators that Ecology has
state water management "under control." Nothing could be
further from the truth.
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.
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.
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.
The MVID Case (and what it means for SB 5028)
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.
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.
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.
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.
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
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.