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In Water-Rights Dispute, State Agency Can Only Lose Helen Jung The Wall Street Journal Northwest, August 23(?), 2000

In the continuing tug of war between saving salmon and fostering economic growth in the Columbia River Basin, the Washington Department of Ecology is about to really start taking it on the chin.

More than 100 businesses, cities and individuals have petitioned over the past decade for permission to divert thousands of gallons of water from the Columbia River to irrigate farmland, keep lawns green, supply new subdivisions and more. But the federal government has strongly recommended that Washington state not allocate a single additional drop of water from the Columbia because the river's flow is often already too low for the health of the wild salmon that swim there.

Complicating matters are state laws that say generally that permits should be issued if the requested water is available and tapping it is in the public interest. Then there are the environmentalists, on the lookout for any sign that Olympia is backing away from its commitment to help restore the Northwest's signature salmon populations. None of the applications have been approved so far.

Stuck in the middle of all this is the state DOE, which is responsible for approving the state's water-rights permits. The agency, many say, is in a no-win situation: It angers the U.S. government and environmentalists if it decides to allow water to be diverted from the Columbia and it angers businesses, cities and others if it doesn't.

And things are about to get worse. Six weeks ago, the National Marine Fisheries Service issued a draft of its salmon-recovery strategy for the Columbia River Basin, a vast network of watersheds in Washington, Oregon, Idaho and Montana. Final versions and an accompanying draft biological opinion are expected later this year. There are 12 endangered and threatened populations of salmon in the basin, whose main rivers are the Columbia and Snake, and the U.S. government believes that increasing the flow of water in the rivers is one of the key steps that should be taken to replenish salmon stocks.

Under the Endangered Species Act, anyone suspected of causing harm to a fish listed under the Act can be sued by the government or individuals in federal court. Until now, though, it's been unclear what actions could constitute harm. The new strategy offers a blueprint for flow targets for the Columbia River Basin and gives the clearest yardstick to date by which to measure a potential violation. So if the DOE grants rights allowing a significant diversion of water, the agency could be hauled into federal court. By the same token, the agency faces suits from parties who say they've been wronged by the denial of a water permit -- an increasing possibility as fewer applications get the OK.

"There is no doubt that the Department of Ecology is caught in the middle right now," says Tony Grover, regional director for the agency's eastern region in Spokane. "We have people that are sure that we saturated the system, that we can't take any more water [out of the Columbia]. And we have other people that are absolutely sure there's more [water available]. And both sides are willing to back that up with legal action."

Adds John Kober, regional organizer for the National Wildlife Federation in Seattle: The DOE and state officials "are going to get sued either way. They just have to choose who they want to get sued by."

In 1992, as the U.S. government was just starting to list salmon stocks under the Endangered Species Act, Olympia declared a moratorium on new Columbia River permits. The state Legislature lifted the moratorium in 1997.

But by then biologists at the federal fisheries service had made it clear that they were worried about the Columbia's water flow, says Bob Barwin, the DOE's section manager for the central regional office's water-resources program in Yakima. They suspected the flow wasn't high or strong enough to flush juvenile salmon out to sea or to keep water temperatures cool for the fish, he says.

So, since 1997, Mr. Barwin says, the message from Washington, D.C., has been that there should be no more permits for Columbia River withdrawals. Then, with the release of the draft recovery strategy, the government more clearly defined flow targets, further boxing in the state.

Oregon doesn't allow any new withdrawals from most of the river during the summer. Montana and Idaho, which spill thousands of gallons of water over their dams to help boost the river's flow, have told the state they want their sacrifices to benefit fish, not the lawns and pocketbooks of Washington residents.

There are varying flow targets for different stretches of the Columbia River, depending on the season. One average flow calls for 99 million gallons per minute, according to the draft recovery strategy. Right now, long stretches of the river fall far short of that. In the summer, the flow meets the minimum standard only about 30% of the time, says Jim Ruff, a branch chief for NMFS in Portland. In relatively rain-free August, it's just 10%.

"If we can't meet these flow targets now, how are we going to be able to meet them in the future if we dole out more water?" asks Chris Zimmer, a spokesman for the Save Our Wild Salmon coalition of fishing and environmental groups.

But others say that economic growth is important for the communities' health. They question the science behind barring water withdrawals. The fisheries service "has not been held accountable to that decision of putting a moratorium on water withdrawals," and has failed to deliver a cogent defense, says Bruce Lovelin, executive director of the Columbia River Alliance, which represents irrigators, public ports, utilities and others in the Columbia Basin.

Some of the 100 applicants with water-permit petitions on file at the DOE have had to find other sources. The Chelan County Public Utility District, for example, is relying on a nearby stream instead.

Others, including Steve Scheib, a Bridgeport farmer, have just given up. He applied in 1991, just prior to the moratorium, to divert 800 gallons a minute to irrigate part of his 80-acre farm, on which he wanted to replace low-value wheat with nectarines. He continued to press his case until 1998, when, he recalls, a DOE official told him, "To be honest, I don't think you'll see water in your lifetime."

"I just told my wife, `that's it,'" says Mr. Scheib. "I don't have any hope at all."

But the cities of Richland, West Richland, Pasco and Kennewick say they won't throw in the towel. They had applied for permits to take about 80,000 gallons per minute from the river to accommodate projected population growth over the next 50 years. The cities' application was invalidated earlier this summer on a technicality. "We do not intend to just forget about it," says Pete Squires, Richland's superintendent of public works, adding that the cities are considering lobbying the Legislature, re-filing the application or other options. The water "is vital to the region."

Mr. Kober of the National Wildlife Federation says the environmental community is prepared to fight the issuance of any permit, no matter how small the draw from the Columbia. The cumulative effect of several small withdrawals can be just as damaging as one big diversion, he says.

Right now, the DOE isn't sure how it will proceed on the applications. It's waiting for clarification from the federal government on the science behind the flow targets. Meantime, armed with nearly $1 million appropriated by the Legislature last year to buy up water rights from farmers and irrigators, the agency is seeking to buy unused or unwanted water rights throughout the state and reallocate those rights, possibly to some of the 100 applicants.

That won't solve the problem, though. DOE water officials say they are resigned to the fact that their jobs won't be easy in the years to come. Says Mr. Grover with the DOE, "Nothing makes people more passionate than water."