Democrats Poised to Seize Water (and Power) in Washington

commentary by James Buchal

12/27/04

"The natural tendency of every government is to grow steadily worse--that is, to grow more satisfactory to those who constitute it and less satisfactory to those who support it." -H. L. Mencken

Last week, while most Washingtonians were focused on the ongoing effort by Democrats to seize control of the office of governor, Governor Locke last week jumped the gun and released a proposal for new water legislation that gives a preview of life under a Gregoire Administration, where every fervid fantasy of Seattleites can become legislative reality.

The proposed water law amendments, breathtaking in scope and audacity, replace centuries of Western water law with a Communist-style system of rationing designed gradually to grind away private water rights, so as to increase river flows in the mighty Columbia. By way of background, it is important to understand that there is not a shred of evidence that the mainstem Columbia River is over-appropriated; existing law would bar further appropriations if it were. As to effects on fish, for twenty years, untold millions of dollars in federal and state funding has been shoveled into "biologists" in a ceaseless quest to prove some sort of relationship between the river flows in the mainstem Columbia and salmon survival. All these efforts have failed.

Perhaps the nadir came last spring, as the product of yet another massive payment from Washington citizens, this time to the National Academy of Sciences. This supposedly august body concluded that even though it was impossible to document any adverse effects on fish from another million acre feet of growth in Eastern Washington water consumption, there was risk (isn't there always?) that would support limitations on further appropriations. The proposed legislation thus candidly declares that higher stream flows in the Columbia River are "necessary for the preservation of environmental values". Like most modern environmental legislation, the proposal will have no perceptible benefits in the real world. Its most important effects are in the minds of those who attach moral overtones to their peculiar political preferences.

If the new law is adopted, no additional water may be withdrawn from the Columbia River (or the virtually limitless areas deemed to be in hydraulic continuity with it) at all. Anyone who needs water must obtain it by extinguishing rights held by others, and only rights upstream. Thus those furthest upstream, in the most vulnerable rural areas, suffer the most. It is their destiny to close their farms and orchards, and sell their water down the river, returning the land to the wilderness so beloved by the urbanites who never see it.

But the long-term effects of the proposal go far beyond "rural cleansing". For the enemies of Eastern Washington, it is not enough merely to cap water consumption, and thus economic growth. After all, the region has chafed under an illegal moratorium on further appropriations since 1991, and there are still enough voters there to threaten urban hegemony. Thus under the proposed legislation, the hapless farmer who does reach upstream to buy water rights suffers an immediate tax of 50% on those water rights "to benefit streamflows". If a farmer needs two acre-feet of water, he must buy four, for two must go to the State's new "Columbia River Mainstem Account" for permanent dedication to instream flows.

The State would prefer to avoid such private "mitigation" transactions, so an appropriation of $70 million is sought for the Department of Ecology to buy water and put it in the Mainstem Account. Water the State buys must only be allocated two thirds for new uses and one-third for instream flows, not half and half. Applicants who turn to the State for water must make an undefined "require[d] annual payment" for the "Columbia River Mainstem Investment Account", creating yet another off-budget slush fund for any sort of environmental boondoggle that catches the fancy of the bureaucrats and their allies (or personally enriches them). Naturally, there must be an entire new "compliance program", to "sen[d] hither swarms of Officers to harass [the] People, and eat out their substance".

Whether a 50% tax or a 33% tax, each transaction will gradually suck the economic life out of Eastern Washington by diverting water from economically beneficial activity to sacrifice on the altar of environmental irrationality. And because the proposed legislation covers "any new water uses", it will tend to freeze all existing patterns of water use, potentially locking farmers into growing the same crops. As agricultural conditions change, farmers who seek to change with them will be forced to forfeit larger and larger amounts of water for instream flows, with each new transaction shrinking the pool of available water.

The Department of Ecology studiously ignores all these effects, boldly declaring in its "Small Business Economic Impact Statement" that because its bureaucrats have so successfully snarled up existing water rights applications, the new proposal should be viewed as a "cost reducing method". Ecology notes that "[e]xperience from the last 10 Columbia River Mainstem water right applications . . . indicates that the existing rules impose business costs due to long waiting periods and expensive litigation", without mentioning that the only reason the expensive litigation was required (a case I prosecuted) is because Ecology unlawfully refused to process the water rights applications in the first place.

Some hint of how the bureaucrats will stretch the proposed legislation is contained in the proposed rules that accompany it. For them, dedicating one-third of the Mainstem Account for instream flows is not enough; an entire third category of water must be withheld "to offset the estimated future consumptive uses that the department might approve within the Washington portion of the tributary basins to the Columbia River". That estimate (presumably to be prepared only after the legislation is passed) may leave precious little in the Mainstem Account for actual new uses.

Drought permits, most recently issued in 2001, will now be limited so that they may only be issued "when the mainstem account administrator certifies that the portion of the mainstem account dedicated to provide for mitigation for new out-of-stream consumptive uses" is sufficient to cover the permit. All of the rule's provisions are intended to mitigate "potential impacts", yet another subtle admission that the entire scheme addresses only the fears of fools, not real-world problems.

If Washington's Legislature contained a majority other than such fools, the Department of Ecology pests who came up with this nonsense would be sent back to their offices empty-handed, and forcefully told to implement the laws they have, rather than building new empires to "solve" the crises they create. But Washington now faces the specter of one-party government controlling all the agencies, courts and the Legislature, and that party is singularly dedicated to building new empires of government employees. There has seldom been a gubernatorial race with higher stakes for Eastern Washington.

© James Buchal, December 27, 2004

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