Chehalis Tribe talks water rights
By Sharon Michael, The Chronicle, The Chronicle, 10/23/98
C.S. Sodhi, the tribe's director of natural resources, and natural resources attorney Jon Hare explained tribal water rights take priority over those issued by the state because tribal rights date back to the reservation's establishment.
Tribal rights are reserved for the tribe in perpetuity by federal authorities. State issued rights are lost if not used.
"Tribes have instream flow rights because they have fishing rights," Hare told the watershed management group. 'That's a significant amount of water"
An assessment of basin water quantity and quality and fish habitat now in the planning stages, would have used old instream flow data used to establish a 1976 Ecology regulation still in effect. But tribal representatives question whether minimum flows are set high enough to support fish migration and habitat.
| Jon Hare, natural resources attorney for the Chehalis Tribe, explains Indian water rights to Chehalis Basin Partnership members Friday morning Including Napavine City Councilor Jim Haslett, left. C.S. Sodhi, right, the tribe's director of natural resources, emphasized the tribe has the authority to set water quality standards on its reservation. | |
"It looks like the tribe will ask that we add (instream flow studies) to our scope," Marc Duboiski, Lewis County shorelines administrator, said following the meeting. "They kind of caught people off guard today."
"It's going to cost a lot of money to evaluate instream flows, when it gets to that point," Hare conceded. "It may be appropriate for federal involvement in measuring instream flows."
KNOWING TRIBAL water rights is beneficial because it lets the state know what's left to allocate," Sodhi said.
He said the tribe is willing to work with the group to negotiate an agreement that is "fair to all."
It is apparently in the best interests of state and local governments to work with the tribe, because the U.S. Supreme Court repeatedly has refused to hear state challenges to tribal water rights claims.
The watershed management group will assess water quantity and quality and fish habitat in the Chehalis River Basin using state Department of Ecology grant money.
"Part of the task is to figure out what's out there - quantities and who uses how much at what times of the year," Duboiski said. "It's very, very complicated. No one is amenable to giving up their water rights."
BUT DURING LOW flow periods in the fall, "if everyone at the same time started pulling out their maximum allocated water rights, there would not be enough water," he conceded.
Brian Walsh, Ecology's Chehalis team leader, said 8,000 water rights claims predate state water rights and the 1976 minimum instream flow regulations.
"If all used their legal entitlements of water, it would have a significant effect on water quality and quantity in the basin," Walsh said Friday afternoon.
NINETY PERCENT of those water rights are allocated to agricultural uses, he added.
Walsh said the Chehalis would need three times as much water to satisfy all paper claims," but "we don't know actual water use."
Conditions could be placed on water rights issued subsequent to 1976, if necessary to protect earlier water rights. "We haven't done that yet," Walsh said.
A NEW WATER RIGHTS application must meet four tests:
"Instream flow is a right," Walsh said.
Instream flow requirements have focused on fish needs, he added, but they also affect drinking water supplies and recreational uses and serve to keep sediment deposits from forming in river channels.
Walsh said cooperation between users provides a "better chance to meet everyone's needs."
Settling conflicts by other means produces winners and losers, he added. "That a big reason why people formed this group.
Walsh said about half of the partnership participants have signed the intergovernmental agreement formally establishing the group. The others are expected to sign the agreement soon.
DUBOISKI SAID haggling over the agreement took place months ago when a draft was circulated to county, city and tribal officials for review. Now it's just a matter of getting the proper officials to sign the final document.
Thurston County has appointed its partnership board representative and its three citizen advisory board members. Lewis, Grays Harbor and Mason counties have not had enough applicants for the four positions allocated to each county.
"It doesn't appear that anyone is that interested in serving either on this committee, or on the advisory board," Lewis County Commissioner Richard Graham said.
Dave Palmer, Chehalis River Council board member, unsuccessfully lobbied the partnership in September for three additional citizen seats on the partnership board.
Joe Williams, Ecology's newly appointed assistant director for watershed management, said his agency is taking a $100 million request to the Legislature next year. It includes $40 million for conservation projects, $20 million for water rights purchases, and $40 million to help small communities upgrade wastewater treatment plants.
"THE GOVERNOR hasn't blessed it yet," Williams conceded. But he called the request an indication of DOE's commitment to watershed planning. "There are 19 groups like yours. We hope to have more next year"
Sharon Michael can be reached by e-mail at smichael@chronline.com or by calling 807-8237.