Hermiston, Ore. - Every summer, a 32-mile segment of the Umatilla River in northeast Oregon goes bone dry - but it's not, as one might expect, the product of drought on the arid, windswept prairie. Irrigators take the entire river for potatoes destined to become McDonald's french fries, or for fields of corn and watermelons. Tens of thousands of acres of farmland near the Umatilla are as green as a Palm Springs golf course.
This is fine for the farmers and for
local small towns such as Hermiston, Echo and Stanfield. It's not
so good for the Confederated Tribes of the Umatilla Indian
Reservation, which straddles the river 50 miles from here. Nor is
it good for native salmon. Irrigation diversions wiped out the
salmon runs decades ago.
The dry river is an
example of the U.S. government breaking treaty promises to Native
Americans. In 1855, the Umatilla tribes ceded lands to the U.S.
government but reserved the right to catch fish in the river and
elsewhere. Then in 1902, the U.S. Bureau of Reclamation began
giving Umatilla water over to irrigators with no thought to the
Adding to the
insult, BuRec essentially gave the water away. Today irrigators in
the Umatilla Basin pay the U.S. Treasury just $1 per acre-foot, a
discount of at least 99 percent off the going
Even that hasn't been enough for some
irrigators. In the Umatilla Basin and elsewhere in the arid West,
some simply take water without permission and without paying for
it, a practice known by a relatively new and loaded term: water
Though reports of water spreading
have had currency for years, it wasn't until this July that the
government attempted a full accounting of the problem. An audit by
the Inspector General's Office at the U.S. Department of Interior
found rampant illegal water use in the Umatilla and elsewhere. As
many as 154,000 acres in eight Western states have been getting
water without payment to the Treasury, the audit said.
Between 1984 and 1992, the government lost
between $37 million and $46 million to illegal use. Half the
projects and two-thirds of the acreage are in the Columbia River
Basin, where conflicts over water are all the more acute given the
precarious condition of salmon runs.
Historically, BuRec looked the other way when irrigators engaged in
water spreading. Documents show officials did not want to take
action that might harm the economic interests of the agency's
"clients," the irrigators. Promoting irrigation was seen as
At the same time, BuRec ignored
tribal claims on the water, creating an unfair double standard,
says Donald Sampson, 33, an articulate fisheries biologist who last
year was elected the Umatilla tribes' chief executive officer.
"When Indians fish illegally,
we are sent to federal prison," he says. "When irrigators kill fish
by taking water illegally, they are not punished. Instead we are
told by the United States government that we must consider the
impacts to the irrigation economy."
duplicity, he says, amounts to racism, a point underscored by the
tribes' official policy on water spreading adopted in March: "To
legalize water spreading activities while continuing to ignore this
tribe's legal rights would ... breach the United States' trust
responsibility to this tribe, and would be a continuation of the
institutional racism which has already devastated this tribe's
economy, religion and culture."
A whistle blower is finally
Though water spreading can amount to water
piracy, it is not always so clear-cut. The official government
definition is "the unauthorized use of federally developed
facilities or water on lands not approved by Reclamation for such
use." In some cases, water spreaders are violating only the fine
print of contracts with the federal government that spell out when,
where and how much water they can get.
show BuRec has been aware of its water spreading problem for more
than a decade. Since 1985, a number of efforts to address the
problem went nowhere. But whistleblower Phillip Doe, an
environmental compliance officer in the agency's Denver
headquarters, was the one official who refused to let the issue
"The American public,
with the deliberate complicity of the Bureau, is being ripped off
to the tune of millions of dollars a year," he told a congressional
committee two years ago. "This is to say nothing of the natural
Now, the Clinton
administration's appointee to run BuRec, Daniel Beard, seems open
to some reform.
Beard's hand is being forced
not so much by the audit as by a sense that federal law clearly
forbids water spreading. "There are no ifs, ands or buts," he told
a federal water-spreading task force earlier this year. "The
statutes are very clear and if someone were to file lawsuits in
individual instances of water spreading, I'm not even sure the
Justice Department would let us go to court and fight."
Beard admits that resolution won't be so easy
as turning off some farmers' sprinklers. "It is one thing to say
water spreading is illegal and stop it," he said. "It is another
thing to say, now what are the implications of that? This is a very
A solution ultimately could
benefit river ecosystems damaged by irrigation withdrawals. From
the Columbia to the Colorado to the Sacramento, adequate flows for
fish are lacking, while the list of endangered and extinct aquatic
species has been growing. In summer, low flows result in warmer
water that is deadly to salmon. Flows returning from fields are
often laden with toxics.
The Bureau is testing
possibilities and reactions. A draft plan, circulating since June,
calls for curbing the more serious abuses while considering less
serious ones on a case-by-case basis. To continue using
unauthorized water, farmers must produce an environmental impact
statement and wade through the requirements of the Endangered
Species and Clean Water acts.
concern Beard and many others share is that water spreading may
erupt into the next environmental battle to shake the West. The
issue, he says, cries out for consensus and compromise:
"I don't want to be forced to
go directly into court and then have to respond. And the result of
that would be a crisis. It would be a crisis just like the spotted
owl where everybody digs themselves into a foxhole and starts
lobbing legal grenades back and forth. That's what I want to try
and prevent here."
Not surprisingly, irrigators
contend that any adjustment of informal or formal policy is bound
to take a strong-arm approach. Says Hermiston water lawyer Tom
Myrum, whose clients include the local irrigators, "It's another
opportunity for radical environmentalists to shut down a
It used to be called
Dan Mills is a second-generation farmer
who works a 2,200-acre spread just outside Stanfield, Ore. He grows
mint for the Celestial Seasonings herbal tea company in Boulder,
Colo., and distills a mint extract for chewing gum.
Mills insists he is no water pirate. His
circumstances illustrate how water spreading is colored in many
shades of gray: Sometimes farmers are trying to conserve water, not
waste it or steal it.
Two years ago, Mills spent
$60,000 for a computerized sprinkler system for fields of corn. The
system replaced an archaic and wasteful "rill" irrigation system
that merely flooded the field. By improving the technology, Mills
saved about half the water he previously used. So he "spread" the
amount he'd saved to another field where he planted additional
crops of corn. He intended the profits from these extra crops to
finance the irrigation efficiencies.
water comes through canals from BuRec's McKay Reservoir, on the
McKay Creek tributary of the Umatilla River. Like other farmers, he
has a contract that permits him to use a specific amount of federal
water on a specific piece of ground at a specific time of year. Any
deviation from this contract without authorization is not legal.
Mills admits he did not have his contract amended before moving the
water onto the additional crop of corn. He says BuRec officials
gave him oral permission, but as Beard notes, those days are
"In the early 1980s, we
were told that was the way to go," says Mills, a 1975 political
science graduate from the University of Oregon. "Now it's being
construed we're not supposed to do this. It's very frustrating."
BuRec delivers water to hundreds of irrigators
in the Umatilla Basin to grow crops worth some $8 million. "Saving"
water by applying it to additional crops makes sense to Mills and
other irrigators, but the Umatilla tribes wanted to devote the
water to instream flows to restore salmon.
Salmon, so depleted already throughout the region, remain crucial
to tribal life and culture. When available on the reservation,
salmon are used in virtually every meal and play a central role in
Tribal leaders gave some
consideration to filing a lawsuit to challenge the water spreading,
a strategy employed successfully elsewhere. Instead, Umatilla
tribal leaders sought a compromise. They proposed restoring the
Umatilla River with water pumped from the much larger Columbia
River, which parallels the Umatilla several miles to the north.
That way, the salmon would get water while the irrigators could
continue working their fields.
The proposal came
at a time when Congress was no longer authorizing water projects.
But Congress, given the chance to sanction a compromise that would
benefit both irrigators and the environment, went along. In 1988,
it authorized $50 million for massive pumps and canals and another
$50 million to pay operating costs and to remove barriers to salmon
migration. There was also financing for hatcheries to help restock
the river with salmon.
When completed next
year, the project will deliver 39,000 acre-feet of water to the
Umatilla River (an average family of four uses one acre-foot per
year). The "extra" water was to help the hatchery fish take hold in
At least, that's how it was supposed
Tribes get the
salmon get dirt
now the project is looking more like another government boondoggle.
The salmon may not receive much more than 5,000 acre-feet of the
new water, according to the Columbia Basin Institute, a
Portland-based watchdog group. Although irrigators dispute that
charge, they do admit siphoning off nearly 34,000 acre feet of the
water without authorization from BuRec or
Even harder to swallow is the way some
irrigators are using the unauthorized water. In contrast to
mint-farmer Mills keeping his water-spreading on his own fields,
some irrigation districts are selling their unauthorized draw to
other farmers at prices far above their own $1 per-acre-foot rate.
Such marketing makes a profit at taxpayers'
expense, charge critics like WaterWatch, a Portland environmental
group that highlighted the marketing as a scandal in 1991.
"It's thievery," Tom Simmons,
the group's founder and a pioneer in Western water law reform, said
at the time. "It demonstrates the incestuous relationship between
the Bureau, irrigators and water-resource managers in states. All
of them are guilty of conspiracy to steal the public's water."
As for the salmon, Simmons says, "they'll need
dirt bikes to get upstream."
uncovered the abuse, BuRec officials claimed they didn't know the
extent of it. Yet internal documents show the agency did know and
condoned it. Now the agency declares that the "water spreaders'
will be cut off next irrigation season. But the agency has been
promising to cut them off since 1992, and the illegal water use has
continued on about 17,000 acres.
"The tribes are feeling as
though they've been shafted for 140 years," says Reed Benson, an
attorney with WaterWatch. "They have been again. There's no doubt
In another compromise in 1992, the
irrigators agreed to deal some water to the tribes for salmon
habitat in exchange for some economic security for the
water-spreaders. In August 1993, however, the irrigators told the
tribes that the deal was off.
through their Portland attorney Gail Achterman, demanded a
permanent right to use the unauthorized water. In a letter to
BuRec, irrigators said the practice has "persisted for decades' and
that "abruptly cutting off water to thousands of acres of
historically irrigated lands will certainly have a significant
adverse effect on growing crops, prime farmland and wetlands."
Says Antone Minthorn, chairman of the Umatilla
tribes, "It is truly unfortunate that the irrigation interests have
decided that they do not want such a cooperative solution to this
The irrigators may have a wider
agenda. Bob Reuter, a water-district chairman in Echo, says the
irrigators want to work cooperatively, but, "We don't want to sign
away our water rights to do this. We would have admitted to doing
things we don't feel are illegal or unauthorized. It also would
have set a precedent on water-spreading policies that haven't been
resolved. That could have affected the whole West."
Adding to the heat are leaders of the
anti-environmentalist wise-use movement, who portray any crackdown
on water spreading as one more threat to property rights. Chuck
Cushman, director of the American Property Rights Association,
says, "Preservationists are trying to undermine private water
rights. The wise-use groups are working to support farmers in their
fight to keep water rights." As a Pendleton newspaper remarked, the
Umatilla River irrigators may well become "the Wise Use movement's
In each of the 24 irrigation projects
audited by the inspector general, "critical or competing water
needs' were not being met. Water spreaders depleted rivers of water
needed to help protected species or to dilute potentially toxic
runoff from farmland. Water spreading damaged or depleted Indian
fisheries and municipal and industrial water
Consider the illegal irrigation
deliveries to 12,884 acres of ineligible land from the Uncompahgre
Project in southwestern Colorado. As the diverted water drains
through the soil, it absorbs "substantial" quantities of selenium,
a mineral known to harm fish and wildlife as well as human health,
according to the U.S. Geological Survey. While water spreading is
not the sole cause of toxic runoff, it has made a bad situation
But water spreading's environmental side
effects may be far more expansive in eastern Washington within the
Columbia Basin Project. There, the audit said, an estimated 42,000
to 53,000 acres get water illegally from the Columbia River, which
is already desperate for flow to support salmon migration through a
gauntlet of reservoirs and dams.
BuRec has been lobbying U.S. House Speaker Tom Foley to eliminate
the illegal water use in the Columbia Basin simply by legalizing it
without any public comment or environmental review. Foley's "magic
wand' - as it was described by Karen Garrison, a lawyer for the
Natural Resources Defense Council - would allow irrigators in his
district to continue taking hundreds of thousands of acre-feet of
water, worth between $23 million and $29 million. Foley's efforts
to attach the provision to a House appropriations bill, however,
were blocked by Rep. George Miller, chairman of the House Natural
Other abuses occur on the
Yakima River in central Washington, once the second largest
salmon-producing river in the Columbia Basin, behind the Snake. The
Yakima's salmon runs are nearly all gone, and irrigation practices
are often cited as a leading cause, though the full story
apparently has not been told.
"Rumor has it that water is
illegally spread to at least 20,000 acres in the Yakima River
Basin," says Katherine Ransel, a staff attorney in the Seattle
office of American Rivers. "But it is only rumor ... We have not
had access to, nor have our requests yielded, any documents which
contain that information."
Beyond the fish, the
victims are the Yakima Indians as well as the state of Washington,
which has spent millions of dollars to upgrade canals and dams and
diversion technology, trying to reallocate conserved water for
fish. As Ransel points out, the benefits haven't
outrageous," Ransel says. "Much of the water saved with state money
has probably been illegally spread to unauthorized lands, places or
uses. The situation in the Yakima is not only a tragedy for the
fishery - it is a shame on both governments of vast proportions and
one that calls for immediate remedy."
Water law takes some blame
Irrigators object to the notion that a crackdown on stolen water
might actually make a difference for fish. Gail Achterman, the
lawyer for Umatilla Basin irrigators, told a July 19 hearing before
Rep. Miller's House Natural Resources Committee that there's often
no legal way to redeploy such water to help
"This is simply an
unfounded assumption in many states," Achterman said. "Curtailment
of irrigation of lands currently ineligible, by itself, will not
result in any water being reallocated to instream uses."
In strict legal sense, Achterman is right. That
is why critics of water spreading are also calling for major
reforms in Western water law - an archaic system of regulating
water that strongly favors the water user. The "doctrine of prior
appropriation" has been applied in most Western states since the
1800s. In this "first come, first served" system, water claims are
honored in the order they were recorded. Thus, the oldest claims in
a particular drainage are the most valuable.
most basins, especially in the Columbia system, all of the water
has been claimed, or over-claimed, while fish and wildlife have no
recognized water right at all. The implication is that any water
passed on by one irrigator would merely be claimed by another
irrigator who has the next-highest right.
water experts as Charles Wilkinson, a law professor at the
University of Colorado, say it will take an overhaul of water law
to balance irrigation and environmental needs. Irrigators are
staunchly opposed to change.
least, BuRec is beginning to go after the most blatant water
spreaders. In early September, the Bureau singled out Westland
Irrigation District on the Umatilla River for illegally reselling
federal water the district had no right to. BuRec threatened
administrative or court action against the district for "willful
and flagrant water spreading," said the Bureau's area manager,
James V. Cole.
According to The Oregonian, the
state's largest newspaper, the irrigators believed they had verbal
permission and gave no indication they would stop the spreading.
The water in question could be as much as 10,000 acre
The lawsuit water spreaders fear may come
sooner than they think, because the Umatilla tribes are losing
patience. Says Sampson, "We are getting to the point where our
natural resources are becoming so depleted we can't even practice
our religion let alone maintain our economy. Our backs are against
the wall. We can't afford to continue to compromise or negotiate
these issues when we are asked again and again to give up more."
Paul Koberstein writes in