Methow Valley Citizens' Council
Scaling down the Resort
Index to MVCC's campaign to avert a destination resort in the Methow Valley, Washington
Statement of Rachel Paschal
Center for Environmental Law Policy
before the Okanogan County Commissioners
July 9, 1996 hearing
on the Methow Valley Citizens Council appeal
of the adequacy of Arrowleaf FEIS. That is correct and the fact that there are water flow issues in this stretch of the river will effect the water availability or supply for the project. Similarily, McGee Creek which is a proposed source for water rights is also an intermittent stream which traditionally dries up during certain times of the year, a fact which is acknowledged, not in the environmental impact statement, in other reports that I have read that were in the Department of Ecology files. Low flows, of course, are a matter of concern not only in the, what we traditionally think of as the low flow season which is the high irrigation season, but also through the months of August through April. Winter time flows are of particular concern because of the seasons in this part of the North Cascades and as a third page to this exhibit, I brought a gaging, or a hydrograph, that shows gage data from the Pateros station which, of course, is down at the bottom of the Methow River and which indicates, and I'll send this around, has a, in fact you can send a couple copies over. The minimum flows that are established by rule for the Pateros station are shown by dotted lines and as you can see in the 1994 flows in the Methow River, did not meet those minimum flows even during the winter months of the year. In fact, for most of the year the minimum flows were not met. I offer this by way of just pointing out that availability of water is a significant concern and problem throughout the Methow River Valley and the question of quanity or supply, adequate supply of water for this project is an issue that must be considered very seriously. I think it's also common knowledge and I believe that Mr. Bernheisel will be pointing out or has evidence he will submit to demonstrate that the minimum flows that are established by rule for the Methow Basin are not considered by biologists to be adequate for fisheries purposes. Also I wanted to provide a little bit of the legal history or background, of water resources in the Methow. The basin plan for the Methow River which was established, pursuant to state law, was adopted in 1976 and is found at the Washington Administrative Code, Chapter 173- 548. It was adopted at the same time that the Aspen Ski Corporation, which was one of the original option holders on this property, was doing it's preliminary assessments for the proposed ski hill at this site. The basin plan specifically adopted an allocation regime for water rights in the Methow basin and it established a preference for single domestic use creating specific non-interruptable quanities. Irrigation and public supply rights were considered to be an established as subordinate or less, lesser, in priority to both single domestic and base flows in the valley. At the time that the basin plan was adopted by the Department of Ecology, the state took the approach it's surface and ground water were not as significantly connected as is recognized today. In 1987 ecology began to change its view of this connection between ground and surface water and I don't believe that it's disputed in the impact statement and has basically operated on the assumption that ground water pumping is going to have an impact on surface water flows and needs to be taken into account in any water management or allocation regime. So that if you're issuing, if the state is issuing or considering changes to ground water rights it's going to have to consider the impacts on surface water flows when it does that. Subsequently in 1989, partly because there was a concern that public water supply was subordinate and was set up to be interruptable based on in-stream flows, a committee was established, the Methow River Rule Advisory Committee or MRRAC, to look at this problem of subordinate public water supply and the first thing that it did was to say, well we need to know how much non-interruptable water is available, because there were certain quantities that were set out in the rules. It's a 2 CFS that's shown in the regulation. So this lead ecology to conduct a couple of studies, known as the 2 CFS studies, to see how much water was left or available to allocate to new water supply. They discovered that basically the basin is over allocated and that no new water is available. This is known and is something that is being addressed, largely through the Arrowleaf project. Because Arrowleaf has focused, or narrowed it's focus, on water supply issues from the acquistion of new water rights. There is a discussion of acquistion of some new water rights in the EIS, but the larger focus in the impact statement is on the transfer of quote existing water rights from one user to another. I am going to talk about that in a little bit more detail. I wanted to talk also about the history of water supply efforts for these projects, since proposals for changes to land use in this area have been going on since, well, for 20 years now. Water has been an issue and subject of concern all of that time. Many of the rights that are associated with the property are of questionable validity and I will explain that in a moment. It may not be available for transfer due to what's known as a Doctrine of Beneficial Use in western water law which is also known as "use it or lose it". In addition the environmental impact statement does not provide adequate information on analysis on some of these issues in order to address them. I have also brought, for your consideration, a report that was prepared in 1979 for the Aspen Ski Corporation. The report is known as the Fox Report, prepared by George Maddox who was an engineer who had previously worked and had quite a bit of experience assessing the validity of water rights for the Department of Ecology. Mr. Maddox was hired by the consultants for Aspen Ski Corporation to determine the validity of water rights. In this report, which is entitled, Report on Rights to Water on Lands Held Under Purchase Option. In that report, Maddox canvased the various rights that are associated with the property and concluded that, and I am quoting from the report, "most of the early claims to rights for water are void due to non-perfection, even though claims were registered with the State" unquote, as required by law. Table 3 on page 38 of this report presents conclusions regarding the validity of various surface and ground water rights, claims, permits and certificates, which are different types of rights that exist on the property and finally Mr. Maddox concluded that the Aspen Ski Corporation should not rely on the rights to water, now pertinent to lands that it holds under purchase option when anticipating its needs for recreation development. And he recommended that the company obtain new water rights for the project, a virtual impossibility we know now about 20 years later. In looking at the specific water rights issues related to this project, I think its helpful to divide it into 2 classic components, supply and demand. First of all, demand for the project is set forth in the environmental impact statement for both total irrigation and domestic demand, is estimated at 450 acre feet per year. This is a significant amount of water in the upper end of the valley and any decisions about water rights to meet that demand will have impacts all the way down the valley, both on in-stream flows and also on the many senior water right holders that hold rights to divert out of the river and from wells further down the valley. Domestic or public water supply, or demand I should say, is calculated based on projections regarding occupancy of the planned resort. An immediate question that comes to mind is, what if these projection are too low? They are not predicting 100% occupancy. They are actually predicting significantly less than that. We have to ask, what if there is a larger amount of water, a larger percentage of occupancy, what water is going to be available for people to use. It becomes a public health issue actually. Domestic and public supplies necessarily a year round supply, or year round demand, and few of the water rights that are associated with this project are for year round use, most of them are irrigation rights that have a seasonal use limitation on them. I think it is intuitive that 700 dwelling units at the resort are going to be using more winter water than the hand full of homes that are now on that property. I mean, obviously, the winter demand for water is going to be significantly greater than the current use. So the question becomes, how are you going to find water that is going to satisfy these demands during the winter time. Keeping in mind, that the hydrograph that I showed you, that sometimes minimum flows in the river are a problem all the way through the year, through the winter season, as well as late summer. The Arrowleaf impact statement identifies 2 potential sources to met this year round demand. One has to do with new water rights and again I believe that new water rights will not be available to this project and secondly, a transfer of surplus water, as identified in the impact statement. But it is not clear that the surplus is going to be available. Because the focus is on transfer water rights, I want to provide just a little bit of background about what's involved in water right transfer process, what ecology in the state is looking at. When ecology processes an application for a change of water right, it is concerned with several issues. First, whether the right that is being proposed for transfer is valid. That is, has it been lost due to abandonment or relinquishment or for some other non-use. Secondly, the quesion is, what is the quantity of water that is available under the water right that is proposed, it isn't necessarily the face value of the right, it is actually based on the actual historical use of the water, continuous use over time. It's also based on reasonable efficiency, you are not allowed to transfer water that has been very wastefully used and there has actually been some development in the law recently on, what is and is not, acceptable waste, particularly with respect to irrigation practices. The ultimate objective in this analysis, is to protect other water rights and that includes senior water rights and junior water rights, as well, are protected under the transfer process from impairment or enlargement by the right that is proposed for transfer. There is flexibility in our transfer statutes. You are allowed to transfer to a different place, you are allowed to transfer purpose, you are allowed to transfer the point of diversion or withdrawal, but the rule that always stands, the strict rule, is, you are not allowed to enlarge your water right, you cannot make your water right larger in the transfer process than it was originally to begin with. That enlargement is considered in a system that is fully allocated or over allocated, as is the case in the Methow basin. An enlargement of a water right, particularly in the upper reaches of the Methow, is certain to have adverse impacts on down stream senior rights and on junior rights, as well. Some of the specific issues that are associated with the impact statement include, quantification of domestic rights, which are also known as the exempt wells or the 5,000 gallon per day wells, I am sure you are familiar with them, they are being drilled all over the state. There are existing domestic wells on the property and they are proposed for transfer of water from those wells at 5.6 acre feet. If you look at the Table of Existing Rights, they indicate 5.6 acre feet will be available from these wells. 5.6 acre feet equals 5,000 gallons per day, however, it is very unlikely that the domestic use of that water has been at the maximum allowed under the statute. The only quantity of water that will be available for transfer will be the amount that was actually used by the houses that are currently using the domestic wells. So that is an over statement immediately on the quantity of water that's available from those wells. The acreage to be irrigated under the golf course verses the historic irrigated acreage on the property is another issue that comes out of the environmental impact statement. Another limit on a transfer water right is that you may not increase the quantity of acreage that is to be irrigated, once the change occurs. An irrigator may not improve his or her efficiencies in water use and then take that saved water and transfer to additional land. This is known as water spreading and is not permitted currently under Washington law. Hence the quantity of the acres that has historically been irrigated on this site becomes a very important question. That acreage is in dispute. One of the problems is that there isn't a lot of information about, well actually there is some information that's available in ecology's files. I believe that the impact statement does not adequately indicate the amount of controversy that is associated with some of the historic irrigated acreage and makes assertions about the amount that is available indicating that there will be adequate acreage to transfer over to the new project. Ecology has indicated that it believes that there is significantly less historic acreage available for transfer and I have brought another exhibit for you, that is a letter that was prepared by Phil Crane who is the permit writer for the Department of Ecology, letter dated March 25, 1996, raising some of the issues that he sees to be associated with this project in which he discusses ecology's current calculation that the historic acreage is less than the amount proposed for the golf course. Another issue associated with the environmental impact statement is the quantity of irrigation water that's available for change. If an irrigator was unable to physically divert water into the head-works during low flow time then that becomes a limitation on the right, as to its period of use. Therefore, proposed change of right to another point of diversion can't be enlarged, even if water is available throughout the season at the new location, essentially it would be an enlargement by providing water, or making water, available at a later time of year than was the case with the original water right. The problem, particularly associated with this issue, is exacerbated by a lack of information regarding the actual historic use and the amount of water that was available during different times of the year. There were two ditches that provided some of the water rights that are proposed for transfer were blown out in 1972 and have never been rehabilitated. Now under various exemptions to the relinquishment statute, these water rights appear not to be subject to loss under the, use it or lose it doctrine, although I think there may be some controversy associated with that. But nonetheless, it is believed that some of them were actually not available for seasonal use or full season use. Yet another problem associated with the calculation of water available to meet supply, particularly on a continuous or year round basis for public water supply or domestic supply, is what I think I would characterize as the sinking creek problem. You may be familiar with the sinking creek case, water rights case of 1993. A number of the water rights that are proposed for transfer to the project are based on pre-1917 claims to water use. 1917 was the date that the State adopted our water code. A claim is a right that is registered with the State, but has not been verified as to quantity. The verification occurs through a process known as a general stream ajudication, which is conducted by the State's Superior Courts. A determination by ecology to allow a transfer requires that ecology take that claim and quantify it. That is, I hesitate to use the word attentitive determination, but in a way that is what it is. That quantification can be subject to revision later on during a Superior Court ajudication. It requires that there be a lot of caution exercised, especially if the claim is going to be used for major development and particularly if the claim is going to support a domestic or public water supply system. You don't want to find out during the ajudication 10 or 20 years from now, whenever it occurs in the Methow Valley, that those claims weren't valid and thus you would have a problem development having occurred; development in an area where water is very limited to begin with. I think that's a fairly significant issue. There are some who say that ecology should not even be making determinations on these claims in the first place, that really should be left to the Superior Court and it shouldn't be done through the change process. Leave it to the legislature to sort that one out. A final issue that I want to raise, or my next to the last issue, has to do with the question of consumptive use for the project. The consumptive use of the water right. Both the draft and the final impact statements quantify existing water use as 100% consumptive. That is, they are saying that there was no return flow from these irrigation water rights, through either surface drainage or infiltration into ground water, which would discharge through the local rivers and streams due to the hydralic continuity that we now know about. The center submitted a comment regarding this issue and I can tell from the response, sort of like Mr. Tiele said earlier today, it appears who ever responded to that comment, we weren't really on the same sheet of music, because I don't believe that the comments actually respond to the issue that we were trying to raise. A water right may be transfered or changed at face value, if the full amount was used historically, continuously, and no waste..(unable to hear).. But water rights typically have this return flow component to them. So say you have a right that is a 100 acre feet, and it was 75% consumptive component to that water right, then the new use created after the transfer cannot consume more than 75%. To do so would allow, or an enlargement of the right. Now this kind of gets turned a funny way in the impact statement, by quanitifying the historic use as 100% consumptive, the impact statement is, in a way, over stating the quantity of water that is available for consumption by the project. I hope this makes sense. Hence, the impact statement estimates that there is surplus water available because, though it was 100% consumptive and it is going to be less comsumptive now. So, for example, in the case 1A scenario in the impact statement which is located at page 29, the statement says there is a net benefit of 294.8 acre feet of water, that is not accurate. Because I am certain that there was return flow associated with that historic use of water. I cannot tell you what the accurate level would be; I can tell you that I disagree strongly with the way that the available water in historic use has been calculated in the impact statement. The final comment that I wanted to make has to do with the question of how alternatives, water supply for the alternatives, is treated in the project. Under the no-action alternative which has divided the project into small parcels using domestic exempt wells, I do not believe that that water would be available for the domestic exempt wells the way that the current and especially the future basin plan will be..there is a new rule underway for water allocation in the Methow basin. That water would not be available for those parcels. And the other alternative involves basically an increase in the amount of, [...] I believe it adds a nine acre, an additional nine acre golf course, to the preferred proposal.
Obviously that is going to require more water and if we are having problems identifying available water for the smaller proposals as it stands right now. Of course, there are going to be significant problems with an alternative that requires even more intensive water use. Those are my remarks. I thank you very much for the opportunity to testify.
Index to MVCC's campaign to avert a destination resort in the Methow Valley, Washington
