Washington State attempts to sell Columbia River water for $6 million

by: Rachael Osborn Posted on: November 08, 2013

The appeal: state can’t sell rivers, favor corporate farms over family farms.

By Rachael Paschal Osborn and Lee Bernheisel, NAIADS

Twisp, OR – On October 30, 2013, conservation group Okanogan Wilderness League appealed a major water right issued by the Washington Department of Ecology (“Ecology”) to Trios Health (formerly Kennewick General Hospital). The Trios water right and this appeal have important statewide considerations.

Conservationists are appealing the Trios water right for three reasons:

(1) Issuance of an unconditional water right when instream flows are established by rule is illegal, as held in a recent Supreme Court ruling (Swinomish Indian Tribal Community v. Department of Ecology (2013), involving the Skagit River). The Trios water right would deplete flows in the impacted stretch of the Columbia River, where Ecology has adopted an instream flow rule to protect salmon migration.

(2) The Trios water right allows the water user to pay $35 per acre foot (per year) up to a $6 million cap for a water right issued in perpetuity. This works out to $1.00 per 9,300 gallons. While Ecology issued the water right in perpetuity (i.e., forever), the payments stop at 40 years. The Department of Ecology indicates it would use this funding to “mitigate” the water right by conducting habitat projects elsewhere in the Columbia basin. Washington water law does not authorize Ecology to give away state waters in exchange for money or non-water mitigation.

(3) In 1977 the people of the state of Washington enacted Initiative 59, now known as the Family Farm Act, limiting the issuance of new water rights for irrigation to farms with holdings up to 6,000 acres maximum. The purpose of the law is to prevent further advantage by corporate agriculture over family farms. Trios Health intends to sell the land served by its new water right to Easterday Farms, which owns acreage in substantially in excess of 6,000 acres. The transaction violates the Family Farm Act.

“The Trios water right has statewide significance because it signals that Ecology is now proceeding to sell the state’s rivers,” said Rachael Paschal Osborn, a Spokane-based public interest water lawyer representing OWL.

The Trios water right has a long history. The water right application was submitted in 1991, but put on hold due to Columbia River endangered salmon listings. A permit was issued in 2003, but successfully challenged by three Columbia Basin tribes.

“The waters of the state are already over-appropriated, but still Ecology continues to issue new water rights – often under political pressure to do so,” said Lee Bernheisel of the appellant Okanogan Wilderness League.

OWL is also represented by the Law Offices of M. Patrick Williams, Seattle. The appeal is also supported by Sierra Club’s Columbia River Future Project and the Columbia Institute for Water Policy.

Okanogan Wilderness League, also known as OWL, is dedicated to fostering, protecting and enhancing wilderness, wildlife and regional natural resources, including increasing instream flows in Washington’s rivers. OWL has successfully litigated several water rights cases, winning landmark Washington Supreme Court decisions in OWL v. Town of Twisp (1997) and R.D. Merrill v. PCHB (1999) (involving the now defunct Early Winters Resort), which established objective standards for water rights transfers in Washington. OWL also intervened to support the only water right enforcement order ever issued by the State of Washington to control water waste, issued against the Methow Valley Irrigation District (MVID) in 2002 and successfully settled in 2011.

Update (November 4, 2013): Okanogan Wilderness League has filed an appeal of a new water right decision, challenging the Washington Department of Ecology’s authority to issue water rights from the Columbia River that are not conditioned on maintaining instream flows.

The appeal also challenges Ecology’s use of “out-of-kind” mitigation that allows the user to pay into a state fund for habitat restoration projects instead of curtailing pumping when river flows are too low. The price? $35.00 for every 325,000 gallons sold, or, pumped.