Seattle, WA –CELP is thrilled to have Bridget Bryck joining us as our legal intern…
US Golden Eagle (USGE) is a multinational corporation based in Canada. It currently has a water right for consumptive use on the Skagit River system in order to irrigate hundreds of acres of blueberries. USGE recently submitted an application for a new permit to withdraw more. If approved, the new permit would allow for the irrigation of an additional 140 acres of blueberries, increase the amount of water used on the current 630 acres of blueberries, and increase the pumping rate so that more wells could be used at once which would in turn allow for more irrigation zones to be irrigated at once. It would also allow for pumping and irrigating earlier in the season than the current water right.
When Ecology and WDFW reviewed the application, they found that the proposed water right would impair the minimum streamflows for the Skagit River. USGE’s application proposed to mitigate this impairment of the instream flow through the Trust Water Rights Program and to insure that there was an adequate supply of water in the Trust Water Rights Program for the proposed mitigation USGE entered into a water
supply agreement with the Town of Darrington. The agreement states that USGE will pay Darrington to transfer a portion of the town’s perfect water rights into the Trust Water Rights Program which USGE will then be able to use to mitigate the proposed impairment of the instream flow.
Ecology is required to examine every new application for a new appropriation of water. There are four criteria that Ecology must consider during that examination: that the appropriation must The appropriation must (1) be for beneficial use of (2) legally and physically available water (3) without impairing existing water rights and (4) without detriment to the public welfare or public interest.
The Department of Ecology’s Draft Report of Examination (ROE) found that USGE’s application is detrimental to the public interest and denied it.
CELP's Position and Argument
The Center for Environmental Law & Policy concurs with the Draft ROE that USGE’s application is detrimental to the public interest. The proposed mitigation is misleading as it does not actually mitigate the withdrawal and instead will reduce streamflows which will cause harm to fish species and the SRKW population.
Although Ecology correctly denied USGE’s application based on the impairment of the public interest there are several additional grounds on which this application should have been denied:
- In additional to failing the public interest criteria laid out under 90.02.290, USGE’s application also fails the criteria that water must be legally and physically available, and the criteria that the proposed withdrawl will not impair existing rights.
- USGE’s application proposes an improper use of trust Water Rights
- USGE’s application proposes an improper use of Darrington’s municipal water rights
Ecology should have recognized that this application would open the door to speculation of unused municipal water rights and used their decision to shut that door firmly. Ecology should have determined that this was an improper use of the Trust Water Rights Program and a misuse of municipal water rights. Ecology should challenge this type of scheme that would impair the instream flow by specifically denying the application based on more than just the detriment to the public interest.
3. Regarding Ecology’s Draft Decision on Darrington & US Golden Eagle’s Water Use Application