Reclaimed Water Issues
in Central Washington
Dawn Vyvyan
The Vyvyan Law Group
and
Tom Ring
Hydrogeologist
Yakama Nation Water Resources
Tell ‘em what you’re not
gonna tell ‘em
• Not going to offer legal opinions
• Not going to offer YN Policy Positions
• Not going to offer state-law definition of
impairment
• Not going to bind YN
• Not going to tell you that state law applies
to YN Treaty Rights
Tell ‘em what you are
gonna tell ‘em
• In the Yakima basin, we are already
reclaiming effluent (after discharged) for
out of stream and instream economic uses
• Where discharge to saltwater, no problem,
other places reclaimed water not new
supply
• In other Yakama Ceded area watersheds,
putting reclaimed water to new consumptive
uses may drop flow below minimums
Yakama Nation aboriginal territories
…the atmosphere they breathed…
• The right to resort to the fishing places in
controversy was a part of larger rights possessed
by the Indians, upon the exercise of which there
was not a shadow of impediment, and which were
not much less necessary to the existence of the
Indians than the atmosphere they breathed.
– Justice Joseph Mckenna
– U.S. Supreme Court
– In United States v. Winans, 1905
U.S. v. Winans, 1905
• Confirmed that the Treaty language assured
the right to take fish and all usual and
accustomed fishing grounds.
• It is an aboriginal right
– Indigenous and existing from the earliest
known time
• Has a Time Immemorial date of priority
Winters v. U.S., 1908
• “Winters” water right came after Winans.
• Winters confirmed the tribe’s reservation of
sufficient water to accomplish the purpose of the
Treaty and has a priority date of the creation of the
Reservation (1855 for Yakama Nation).
• Includes irrigation water for reservation and
wildlife and stockwater.
• None of the these Yakama Nation surface water
rights subject to state law or regulation
Article 3 of Treaty of 1855
Article 3 of Treaty of 1855:The exclusive right of
taking fish in all the streams, where running
through or bordering said reservation, is further
secured to said confederated tribes and bands of
Indians, as also the right of taking fish at all
usual and accustomed places, in common with
the citizens of the Territory, and of erecting
temporary buildings for curing them; together
with the privilege of hunting, gathering roots
and berries, and pasturing their horses and
cattle upon open and unclaimed land.
Supremacy Clause
Kittitas Reclamation District v.
Sunnyside Valley Irrigation District
• Aka Quackenbush decision, 1985
• Same court as 1945 Consent Decree re: irrigation rights in Yakima
basin.
• 1979: Fish biologist (only one in basin?) observed dewatering of
salmon redds.
• YN took USBR to federal court over its Treaty fishing rights and won.
• 9th Circuit affirmed District Court order to USBR to release reservoir
water to protect redds.
– Protects Chinook salmon that spawn in fall when streamflows
nearest lowest levels
– Ensures that in a natural system, spawing site will remain covered
with water throughout the year.
Quackenbush (cont)
• Quackenbush created SOAC, System
Operations Advisory Committee, four
biologists who recommend flows necessary
to maintain fish and other aquatic life
• Per Acquavella Court flows reserved under
YN Treaty right determined by USBR in
consulation with SOAC and others.
Flip
Flop
Upper Mainstem
reservoir releases
ramp down to
shrink river before
spawning begins
Naches Arm
reservoir releases
ramp up to make up
the difference
Yakima River
Basin
Rainshadow
Orographic Uplift and
Rainshadow Effect
Key Locations in Yakima Basin
Reservoirs
KRD Diversion 
Diversions
Bumping 
 Roza Diversion
Rimrock 
WIP Diversion 
Yakama
Reservation
Sunnyside Diversion
^ Parker Gage
The Bucket as Funnel
• Think of the Yakima
basin as a funnel
tapering to the
Parker Gage.
• After storage
control, all flow
tapers to the control
point at Parker Gage
• Reduce any inflow
and reservoir
releases will be
made to maintain
diversions and
Parker flow
• Releases come at
expense of TWSA
– Result in
prorationing or
reduced
carryover
Upstream Impairment
• Deliveries to proratable irrigators are reduced to
an equal % of “entitlement”
• Prorationing based on Total Water
SupplyAvailable
• Prorationing is without regard to location (above
Parker)
• Ergo, reduction in input will result in impairment
equally to upstream or downstream users
Now Reclaim (or just claim)
some water
• E.g. Yakima discharges about 20cfs at Wastewater
Treatment Plant in Gap to Gap reach (above
Parker)
• That water irrigates ca. 1000 acres and generates
ca. $2M (apple anyone?) and sustains streamflow
• “Reclaim it and TWSA drops
– Prorationing drops in drought years (or does it?)
• Burden shared equally among proratables (or is it?)
– Can’t impair YN Treaty Rights
– Yakima basin “federalized”
Yes, Yes
Entiat
Why Go There?
• In Yakima basin, any additional consumptive use
will reduce supply for existing instream and out of
stream water rights
• It’s the water budget…
– Old, new, borrowed, blue
• We are actually doing pretty well in the Yakima.
Don’t need new destabilizing laws that create
inevitable conflict.