Water for the taking: Some irrigators get loose with the law

by Paul Koberstein

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 environmental consequences.


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 rate.


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 spreading.


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 paramount.


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."


The 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 heard


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.


Documents 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 die.





"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 resources damage."


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 complicated issue."


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.


The underlying 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 resource-dependent industry."





It used to be called


water "saving'


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.


Mills' 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 over.





"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 religion.


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 the river.


At least, that's how it was supposed to work.





Tribes get the shaft,


salmon get dirt


But 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 Congress.


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."


When WaterWatch 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 about it."


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.


The irrigators, 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 problem."


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 poster boys."





The wider problem


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 supplies.


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 worse.


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.


Nevertheless, 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 Resources Committee.


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 materialized.





"It's just 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 salmon.





"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.


In 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.


Such 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.


Symbolically at 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 feet.


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." n





Paul Koberstein writes in Portland, Oregon.





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