Washington State Moves to Buy Water from Indian Tribes

Washington Governor Christine Gregoire has signed agreements worth $5.85 million annually with two eastern Washington Indian tribes[1] and the U.S. Bureau of Reclamation to obtain up to 132,500 acre-feet of water each year from Lake Roosevelt for farmers, cities, and endangered salmon in the Columbia Basin. The agreements, which are subject to legislative approval, would provide water to owners of 10,000 acres east of Moses Lake who now rely on a diminishing ground water aquifer, and to eastern Washington cities that have been waiting for years for new water supplies.[2] The agreements would also provide an additional measure of security to eastern Washington parties holding interruptible water rights by providing water during late summer low flow periods. Governor Gregoire has also asked the Washington Legislature to provide local governments around Lake Roosevelt with $2 million to address priority water issues.

New water permits for the agricultural, municipal, and industrial water use may be issued as early as spring 2008. The East Columbia Basin Irrigation District will work with local farmers to deliver Lake Roosevelt water via existing infrastructure to lands that currently irrigate with ground water. It is currently unclear whether those farmers will need to give up existing groundwater rights before they can receive the water. Cities and industrial users with pending permit applications for water may have to finance the installation of necessary delivery infrastructure before they can put the water to use. The State’s tentative agreements with the Colville and Spokane Tribes also call for the release of 27,500 acre-feet of water each year, and an additional 17,000 acre-feet during critical drought years, from Lake Roosevelt to improve stream flows for salmon during the critical late-summer period on the Columbia River.[3] The Tribes will use the money for restoration and economic development.[4]

Lake Roosevelt and the Columbia River

Lake Roosevelt was formed on the Columbia River when the United States constructed the Grand Coulee Dam. The “Mighty Columbia” is a national icon that flows 1,200 miles from the Canadian Rockies in southeastern British Columbia to the Pacific Ocean at Astoria, Oregon. The river connects a 259,000 square-mile basin that drains a watershed covering seven states (Washington, Oregon, Idaho, Montana, Nevada, Wyoming, and Utah), a Canadian Province (British Columbia), and thirteen federally recognized Indian reservations. The Basin’s waters are used to irrigate crops, transport goods, supply domestic water, and sustain natural resources, particularly salmon.[5]

The Columbia River Basin contains over six million acres of irrigated agriculture. The United States Bureau of Reclamation (U.S. Reclamation) is allocated about two-thirds of the water from the River, making it the River’s single largest water user on the mainstem of the Columbia.[6] Since Washington adopted a Water Code in 1917, the state has allocated 768 surface water and 1,379 groundwater rights on the Columbia River mainstem.[7] The Basin is also the home to numerous salmon and steelhead species and was, historically, the world’s largest salmon producing river system. Water withdrawals, dam building, and other human activities have impacted the Basin’s ecological health and many of the Basin’s fish are now listed as threatened or endangered under the Endangered Species Act.

Despite competing interests in the Columbia Basin, prior to the 2006 Columbia River Basin Water Supply Act (Columbia Water Act),[8] Washington had no management plan separate from U.S. Reclamation’s plans for Columbia Basin water. Due to uncertainty caused by Washington’s lack of water planning, Columbia River water rights have long been a source of substantial litigation.[9] For more on the Columbia Water Act see J. Kray, Historic Washington Act Seeks to Manage Water in the Columbia River Basin, Marten Law Group Environmental News (May 3, 2006).

Washington’s Agreements with the Spokane and Colville Tribes

The Spokane Tribe and the Colville Confederated Tribes have reservations in eastern Washington that carry with them “federal reserved” water rights and likely have certain other rights to water in Lake Roosevelt.[10] The U.S. Supreme Court established the reserved water rights doctrine (“Winters Doctrine”) in Winters v. United States,[11] which held that a federal reservation of public land can carry implied water rights necessary to fulfill the purpose of the reservation.[12]

Washington has agreed to pay the Colville Confederated tribes $3.8 million in the first year and $3.6 million in subsequent years for water from Lake Roosevelt.[13] The Spokane Tribe will receive $2.25 million annually. Payments will be adjusted for inflation over time. The agreements are intended to avoid purchasing the water at current market rates, which the state would find cost prohibitive. The annual payments will continue until the Lake Roosevelt water is no longer needed in the Columbia River Basin for agriculture, municipalities, or fish. The money will come from the State’s General Fund.

According to a State press release, loss of irrigation water in the area now served by the rapidly depleting Odessa aquifer could cost the agricultural region $600 million a year in revenue and the elimination of 7,500 jobs. Water users who may benefit from Washington’s agreements with the tribes include:

• Irrigators of 10,000 acres of land in the water-challenged Odessa Ground Water Management Subarea. They would receive surface water from Lake Roosevelt and possibly end their reliance on the rapidly depleting Odessa aquifer.
• As many as 379 holders of “interruptible” water rights that can be stopped during droughts, most of whom are farmers who use the water to irrigate their crops. The addition of 33,000 acre-feet of water for use in dry years would create a “drought insurance” program for these water users. With this additional water, there would arguably be less risk of having water supplies interrupted or cut off in drought years.
• 128 applicants are seeking water for municipal and industrial use within one mile of the Columbia River. Up to two-thirds of these applicants may receive water under the agreements and be able to better serve a population projected to grow 20 percent over the next 20 years. Applicants include Chelan County Public Utility District 1, East Wenatchee Water District, Klickitat County Port District 1, Klickitat County PUD 1, Okanogan County Public Works Department, the Washington Fish and Wildlife Department, Washington Parks and Recreation, and the Cities of Brewster, Camas, Kettle Falls, Pateros, and Washougal. 

The agreements will make up to almost 45,000 acre-feet of water per year available to instream flows and endangered species. 27,500 acre-feet of water will be available for such uses each year. An additional 17,000 acre-feet of water will be available during critical drought years to increase water held in-stream to benefit endangered salmon and improve the health of the Columbia River.

Local governments in Eastern Washington will likely also see additional, slightly less direct, benefits from the agreements. For example, for local governments around Lake Roosevelt, Governor Gregoire is asking the Legislature to provide $2 million to address priority water issues.[14]

The U.S. Bureau of Reclamation will deliver water to Odessa area farmers using existing infrastructure by lifting water from Lake Roosevelt at Grand Coulee Dam, conveying it to Banks Lake, and then distributing the water through the East Low Canal.[15] Others may need to invest in new water delivery infrastructure. The drawdown is anticipated to begin in late spring 2008.

Potential Hurdles

The agreements may face some challenges. First, the agreements require legislative approval and funding, which is never guaranteed. However, Governor Gregoire’s Democrat Party controls both the House and the Senate of the Washington Legislature and the 2006 Columbia River Act passed with diverse support by overwhelming majorities in both houses.[16] Therefore, it appears likely that the Legislature may approve the agreements.

Second, drawing down Lake Roosevelt may aggravate long-standing environmental disputes and, therefore, face legal challenges. Current water operations result in significant seasonal fluctuations in the Lake’s levels. The water releases anticipated under Washington’s agreements with the tribes would lower Lake Roosevelt by an additional foot in normal years and by 1.8 feet in drought years.[17] The Lake is contaminated with metals that were discharged from 1900 to 1998 as slag material from a smelter in Canada and that contamination has been the subject of extensive litigation involving the Colville Tribe, the U.S. Environmental Protection Agency (EPA), and the Washington State Department of Ecology (Ecology), among others.[18] During the spring, the reservoir water level decreases substantially and exposes extensive reaches of contaminated sediments that, upon drying, may be transported via the prevailing wind throughout the Lake Roosevelt area.[19] EPA has stated that airborne contaminants in the Lake Roosevelt area may be of concern to human health and has recommended additional studies.

In February 2007, Ecology issued a Final Programmatic Environmental Impact Statement (EIS) on the Columbia River Basin Management Program that identified possible Lake Roosevelt draw downs and evaluated potential environmental impacts. In accordance with the State Environmental Policy Act (SEPA), Ecology is now preparing a Supplemental EIS (SEIS) for the Lake Roosevelt Incremental Storage Releases Project (formerly called the Lake Roosevelt Drawdown Project). The action Ecology is considering is the issuance of water rights to implement the project.

The SEIS will evaluate the degree to which the agreements’ proposed releases from Lake Roosevelt will add to or reduce existing impacts associated with reservoir operations. If environmental groups or other interested parties have concerns that the SEIS does not adequately address then the State and the tribes may face legal challenges over the agreements’ environmental impacts.

Conclusion

The agreements with the Tribes may help ease at least some longstanding water disputes in Eastern Washington, provided the Washington Legislature approves the agreements and they withstand any attacks. As with most things in water law, the road has many twists and turns. There is at least the hope in these agreements that there will be more water available to the many constituencies that need it.

For more information about Marten Law Group’s water resources practice, please contact Jeff Kray.