Budd/Deschutes Environmental Stewardship Coalition Update

UPDATE:  Lacey City Council unanimously passed a resolution to sign the MOU last night.  That means all have agreed and the signing ceremony on Nov. 29th is on.

The Olympia City Council voted unanimously to approve signing the MOU forming the Budd/Deschutes Environmental Stewardship Coalition tonight.  The City of Yelm and the Squaxin Island Tribal Council unanimously voted in favor last week.  If the City of Lacey approves the MOU this Thursday, there will be a signing ceremony at the Squaxin Museum on Nov. 29th at 3:30pm.

Here’s the video from that portion of last night’s meeting.

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New Deschutes Watershed Coalition Formed


On-the-ground habitat restoration projects will be the focus of a new coalition to jumpstart salmon productivity in the Deschutes River watershed.  The Squaxin Island Tribe and the cities of Olympia, Lacey and Yelm are establishing the Deschutes Watershed Environmental Stewardship Coalition.

“The Deschutes coalition will be an ongoing alliance to fund and conduct on-the-ground projects to restore a healthy watershed,” said Andy Whitener, natural resources director for the tribe.  “The coalition will put words into actions and start restoring productivity to the Deschutes River.”

Initial projects are slated for the 197-acre farm on the Deschutes River near Lake Lawrence that the cities recently purchased as part of mitigation for their new water rights.


Smith Farm near Lake Lawrence

In the past, the Deschutes River was the largest producer of coho salmon in deep South Sound.  A landslide in 1990 destroyed the most productive coho tributary in the watershed.  “The impact of that landslide is still being felt throughout the watershed,” said John Konovsky, environmental program manager for the tribe.  “But we know the Deschutes can be a productive salmon stream again.”

“Thirty years ago, we were seeing coho returns in the tens of thousands, now we’re talking about coho runs in the hundreds,” said Jeff Dickison, assistant natural resources director.  “We need to get our hands dirty now to improve coho habitat and bring back stronger runs.”

Because the upper Deschutes River is relatively undeveloped – less than 10 percent has been converted to impervious surface – its still possible to restore salmon habitat and productivity.  “If we restore some habitat and give these fish half a chance, they’ll recover,” Dickison said.

“The tribe’s treaty rights, economy and way of life are meaningless if we aren’t able to harvest salmon,” Whitener said.  “Protecting and restoring salmon habitat is the most important thing we can do to restore coho and protect our treaty right to fish.”

Mitigation – reduce the severity of an action by lessening the impact.

This is the third in a series of posts about replying to the assumption by Lacey’s city manager Greg Cuoio that mitigation is a good way to provide more water for the city of Lacey. You can read all the posts here.

The concept of mitigation has commonly been used to address environmental impacts, growing primarily out of the efforts to achieve no net loss of wetlands over the last few decades. I’ll leave you to your own conclusions about how successful that has been.

However, there is a substantial body of information to guide mitigation decisions by defining the functions, quality and amounts of resources that are impacted. Due to uncertainty of success, design and construction variability, our lack of understanding about recreating whole ecosystem processes, the precautionary principle, and factors that are simply beyond our control (identifiable but not predictable: we know we will have earthquakes that result in subsidence, but we do not know when) we have developed numerous protocols for how to mitigate wetlands.

Mitigation generally includes a sequence of steps that attempt to lessen an impact.

  • First, avoid the impact altogether by not taking a certain action.
  • Second, minimize the impact by limiting the degree or magnitude of the action and its implementation.
  • Third, rectify the impact by repairing, rehabilitating, or restoring the impacted environment.
  • Fourth, reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action.
  • And finally, compensate for the impact by replacing or providing substitute resources or environments.

Unfortunately, many projects simply jump to this last step and try to substitute something that is politically, socially, environmentally, and maybe scientifically palatable. We have even come to creating mitigation in advance, mitigation banks, because we know we are going to accept some type of compensation, possibly only partially related to the type of impact that occurs and often in an entirely different location than the impact.

Even though we go through these gyrations as to how to mitigate, to lessen the impact, there are still substantial volumes of rules and practices, and theories as to how to make it work for wetlands. Conferences have been held, books have been written, lawsuits have been litigated; there is a significant amount of information and guidance for proponents, regulators, and interested parties to call upon to affect an acceptable mitigation out come.

So, when you transport the mitigation principle to water rights, you might think there is some commensurate level of guidance as to how to make it work, right? You would be completely wrong. There is none, nada, zero, zip.

The Department of Ecology, the agency charged with overseeing water rights in this state, has no formal guidance to authorize mitigation. Yet, these days, they routinely consider mitigation for water rights impacts because it is the only mechanism that provides for them the ability to keep issuing water rights, even though no water exists to support them. All the water in western Washington is essentially spoken for, divided up between the owners and the users such that there is no reserve, no excess water.

In many cases, streams and rivers are over appropriated, that is, more water rights have been issued by the state than practically exists in the stream channel. If everyone used their water right at the same time they would dry up the channel. This has led to the concept of senior water rights: first in time, first in right. The older your right is the better your guarantee to actually get water, while junior users may be shut off to protect the senior rights.

In case you have not considered it, the Tribes hold the most senior water rights. They were here first and they never gave their water rights away. In fact, the Tribes reserved their rights through the series of treaties between the Tribes and the United States government long before Washington was even a state.

So when all the water has already been appropriated and basins have been closed to further appropriation, what is a regulator to do when a new application comes along asking for more water? For some time Ecology did nothing, resulting in a huge backlog of water right applications. They could have simply said no, the well is dry (choose your own metaphor).

But fearing the political backlash of an apparently irrational public, they have fiddled around trying to get more water out of the proverbial rock. Their current favorite accounting trick is to apply the concept of mitigation to water. First, avoid the impact, right? Well that one is out. And so on it goes until they get to compensatory mitigation, substituting an action to offset the impact. But they have no rules! Look up mitigation in the state water code; you won’t find it. Ask Ecology whether they have any adopted rules or guidance for what is acceptable mitigation for water rights. They will recite some party line about their authority, but the simple answer is no. They have no rules. It makes for an interesting game when there are no rules and the decision maker is an enabler.

How do you mitigate for taking water out of a stream? Water creates instream habitat. It is the medium in which fish live. You dry up the stream and you have no fish. Once those fish are extirpated, their genetic integrity is gone, possibly forever. How do you compensate for that loss? Have you ever looked at Woodland Creek during the summer where substantial reaches dry up? Do you honestly believe that is normal? There are some small streams around Puget Sound that do run dry in the Mediterranean summer we enjoy. But Woodland Creek that drains several lakes that are fed by upwelling groundwater? A more reasonable conclusion is that numerous human caused activities, like wells sucking water out of the aquifer and impervious surface short-circuiting the hydrological system have severely impacted Woodland Creek.

The Squaxin Island Tribe has proposed to Ecology that they write rules for how they handle mitigation decisions in water rights determinations. We have offered to help. They have declined our overtures. We have pursued litigation, appealing water right decisions, in order to build case law around mitigation determinations. In short, we have been fighting this beast because the decisions to keep issuing new water rights where no water exists are fundamentally nonsensical. Given the Tribe’s well established positions on the matter and the nature of the dialogue with Ecology and the local municipalities including Lacey, no one with a reasonable understanding of what is going on could conclude that “complex water rights issues smooth out when cooperation is involve.”

Water, Fish Need

This is the first in a series of posts replying to the assumption by Lacey’s city manager Greg Cuoio that mitigation is a good way to provide more water for the city of Lacey.

Water in the State of Washington has a very few actual owners. When we talk about water rights, we are talking about permission to use water, essentially to borrow it for a time. Water rights are not a conveyance of ownership. The only owners in Washington are the federal government, based on their reserved ownership from before Washington was a state, the state based on what they were granted from the federal government, and the Tribes, the original owners who reserved water rights in the treaties. In other words, the original owners never gave up their interest. Everyone else seeks permission through water rights to use water. Lacey falls into this category.

The State of Washington can only authorize permission to use the portion of the water that they own or control. This amount is clearly not all of the water. When the Tribes reserved water in treaties, some of it is for the fish: instream flows that sustain the aquatic environment and assure that fish like salmon can survive and reproduce in perpetuity. There must be water in streams and the Squaxin Island Tribe is willing to protect that right, that ownership, that property.

The problem arises when some selfish parties want uncontrolled access to as much water as they can get, regardless of how their interest affects anyone else. They do not care if they dry up streams as long as they can do what they want. Have you ever checked out Woodland Creek during the summer as it flows through Lacey? That’s right – it runs dry (an oxymoron) in places. While there are multiple reasons why this happens, one of them is that Lacey pumps water out of the ground for its municipal water system. This lowers the level of the groundwater aquifer and cuts off flow to the stream channel. This situation exists to varying degrees all over southern Puget Sound.

Lacey is working with other municipalities to gain access to more water to fuel more growth of housing developments and shopping centers that identify the trademark feel of the Lacey environment. They know that water is limited as they have been under a moratorium for new hookups in the urban growth area. One would think they would be sensitive to the issues and the other players that they must navigate if they are going to continue their unsustainable growth. Yet they have continued to act preemptively and without an accurate presentation of the facts.

All of the streams and the Deschutes River in WRIA 13 are closed to further consumptive appropriation. This includes diversion of surface water and it also includes the withdrawal of groundwater that would impact the surface water flows of these streams. All of the groundwater in this area is related to surface water flows as a product of the last glaciation. Some of the jurisdictions are interested in developing a new well field out near McAllister Springs. Even though the physical location is within the McAllister Creek watershed, the groundwater withdrawals will have an effect on the Deschutes River flows. The Squaxin Island Tribe has long pointed out this circumstance, and in recent years modeling of groundwater movement has confirmed this fact. And there lies the rub: how can you create additional impacts on a river that is closed by law to further appropriation of water?

Ecology says they will consider such water right applications if they include elements of mitigation. They point to some vague wording in state law to support this contention, yet they have no written policy, no rules, no guidelines, in general, no clear pathway to accomplish this whatsoever. While the Tribe is not convinced that the State has any water to allow Lacey to use, we are equally perplexed about what state law, if any, provides them the vehicle to pursue this course.

When Lacey acts blithely to take something that is not theirs, the Tribe takes offense. In this case, we had offered to sit down and listen to their ideas, however, we have made no commitment to negotiate an outcome with them. They have violated the respect that is involved in dealing with this issue, and as a result, we have cancelled further meetings with them until we reassess the situation.

Coming Soon: How does one mitigate for drying up a stream?

Deschutes Water – Cuoio Gets it Wrong, Again

Why can’t Lacey City Manager Greg Cuoio think before he opens his mouth and insults the Squaxin Island Tribe? Or maybe he does think and his insults are intentional. In any case, Cuoio’s recent comments to the Olympian are an inaccurate rendition of the current status of very delicate discussions regarding the continued plundering of water resources by the likes of the City of Lacey. At best they are uninformed and his blurting of Lacey rhetoric to the local press establishment is offensive to the Tribe.

As a result, in the coming days I will present a more detailed and accurate description of what is really going on and a reasoned argument as to why Lacey should cease and desist their arrogant attempts to steal water from its rightful owners. Please stay tuned. I am sure you will find this perspective to be enlightening.

Choice High School Students pick up garbage in upper Oakland Bay

October 15th was one of two days this year that the shellfish industry picked up garbage on beaches in South Sound. Four Choice High School students and their leader, John Johnson pitched in to clean up debris on the Twin River Ranch tidal marshland at the head of Oakland Bay.


In the phot0, Michael Hooton shows off the garbage pile.  Taylor Shellfish will bring a boat in later in the day at high tide to collect the garbage for disposal.

This is the first time garbage has been picked up in the Twin River Ranch tidal marshlands.  The effort was spurred on by the pending acquisition of the property by the Capitol Land Trust.  The land trust intends to maintain the property for its fish and wildlife habitat value.