Monthly Archives: March 2015


Washington Water Watch – March 2015 Edition

Columbia River, Hanford Reach - no credit

Hanford Reach of Columbia River

Don’t miss our March edition of Washington Water Watch!

Click here to see the PDF version of our newsletter.

This month you’ll find articles about CELP’s recent victory in our Spokane River PCB challenge, the positive outcome of our Columbia River challenge, updates on other water issues and the Legislative session, an introduction to our new Development and Outreach Coordinator, and more.

If you aren’t already signed up to receive our monthly newsletter, sign up at the bottom of the page.


Honoring Upper Columbia United Tribes with the Ralph Johnson Water Hero Award

On May 21 we invite you to Celebrate Water 2015 by joining CELP members to honor the Upper Columbia United Tribes (UCUT) at Ivar’s Salmon House in Seattle.  Click here for event information.

The five Tribes of UCUT are the Confederated Tribes of the Colville Reservation, the Spokane Tribe of Indians, the Kalispel Tribe of Indians, the Coeur d’Alene Tribe, and the Kootenai Tribe of Idaho.

Even while Canada and the United States continue to posture on modernizing the Columbia River Treaty, UCUT is moving forward with the first phase to return salmon home to ancestral spawning waters of the Upper Columbia.  This is an historically important first step.  The Tribes (and First Nations in Canada) need public support to bring the salmon home.

Chiefs, Grand Coulee DamIn 1942, 450 years after Columbus stepped foot in the Americas and less than 140 years after David Thompson and Lewis & Clark stepped foot into the Columbia River Basin, the gates at Grand Coulee dam in the U.S. closed with the tacit approval of the Canadian government.  No passage was provided for the millions of salmon returning each year to the Upper Columbia, as key species for the environment.  Tribes and First Nations were never consulted.

What were the consequences of those Columbia River dams — besides cheap power for communities like Seattle, flood control for Portland, and other benefits mostly for non-Indian people?  For indigenous people, the salmon, and the river ecosystem, the consequences were devastating.  With the closing of those gates at Grand Coulee dam, the waters began to rise.  A whole way of life in those river valleys that had existed from “time immemorial” was drowned, permanently flooded.

Traumas move through generations.  Suicide rates remain high on Indian reservations, especially among Indian youth.  In recent months, both the Spokane Tribe of Indians and the Colvilles have declared suicide emergencies.  Recognizing that mental health and ecosystem health are linked, and the importance of salmon to their cultures, all five Tribes are moving forward with returning salmon to the Upper Columbia.  Their efforts in rebuilding the salmon runs of the Upper Columbia benefits all people – indigenous or nonindgenous – in the Columbia Basin, Puget Sound, and the West Coast.

As a region, we have never confronted what happened here to these people as a result of the dam-building era.  As Bishop Skylstad so eloquently spoke at the Gonzaga University conference last May on Ethics & the Treaty:  Righting Historic Wrongs,

“Have we, as a dominant culture — and sometimes a domineering culture — said to our native peoples,  ‘Will you forgive us?’  Have we done that?   I don’t think we have.”

(For more, view the short film One River. Ethics Matter, or learn about the Ethics & Treaty Project).

On May 21 at Ivar’s Salmon House in Seattle, we will be honoring UCUT (and through them, the indigenous people of the Upper Columbia) for their leadership in restoring salmon and the river.  CELP is also working with UCUT to promote a new film, Treaty Talks that helps tell the story.

Links –

– Spokesman Review, Upper Columbia Tribes seek to restore river’s salmon runs


Columbia River flows to be protected

Dept of Ecology responds to lawsuit, re-issues Trios/Easterday water right with river flow protections

Seattle – Today conservationists announced they will not appeal a revised water right issued by Washington Department of Ecology (Ecology) to Trios Health/Easterday Farms after Ecology amended the water right to protect Columbia River flows.   The earlier legal challenge of the water right focused on Ecology’s practice of issuing new water rights that deplete rivers by using “out-of-kind mitigation.”

“We are pleased that Ecology has abandoned ‘out-of-kind’ mitigation for this water right,” said Rachael Paschal Osborn, senior policy analyst for the Center for Environmental Law & Policy (CELP).  “Out-of-kind mitigation is illegal.  It threatens to de-water rivers statewide.”

The water right will irrigate 2000-3000 acres of land owned by Easterday Farms.  Kennewick General Hospital (now Trios Health) received title to the lands as a gift in 1980, but the lands lacked irrigation water.  Trios sold the land to Easterday Farms, contingent upon receiving a water right from the state.

In 2013, Ecology issued the water right, but without the instream flow protections routinely required for the Columbia River.  Rather than providing “bucket-for-bucket” mitigation to protect Columbia River flows, Ecology instead required a $6 million payment by Trios Health/Easterday to pay for habitat improvements in the Yakima and other watersheds.  The Okanogan Wilderness League and CELP appealed (see “background” section below), and the Pollution Control Hearings Board directed that the matter be sent to trial, requiring Ecology to prove that out-of-kind mitigation would actually offset the impacts to Columbia River flows.  Rather than going to trial, Ecology issued a new water right with instream flow and in-kind mitigation requirements.

“Rivers in Washington State, including the Columbia River, are already in trouble from too many water rights and withdrawals,” said Osborn.  “An honest appraisal of out-of-kind mitigation would show that habitat projects, whatever their merit, still fail to protect instream values, including fish, navigation, recreation, and scenic beauty.”

The new 2015 water right is conditioned on the Columbia River instream flow rule.  In addition, the $6 million to be paid by Easterday Farms will be used to purchase and retire existing water rights to directly offset impacts.

“It is not appropriate to exchange out-of-kind mitigation for water.  You can anchor a tree to the bottom of the river, but it won’t help if the river is dry,” added Osborn.  “If Ecology issues similar water rights in the future, CELP will have no choice to but to challenge.”

Background

The OWL/CELP 2013 appeal of the Kennewick Hospital/Trios/Easterday water right was based on the following issues:

– The water right would deplete flows in the impacted stretch of the Columbia River, violating the state’s own instream flow rule adopted to protect salmon migration.

– The mitigation projects generally would have had a short life-span, but the removal of water from the Columbia River would be perpetual and unending.

– The out-of-kind mitigation projects in the original water right would have been completed anyway, funded through federal and state programs to recover salmon.  This has turned out to be true – most of the one dozen habitat projects have been constructed.

– Washington water law does not authorize the state’s water agency to give away state waters in exchange for money or non-water mitigation.  There is growing public concern about financial mismanagement within the Department of Ecology, especially relating to the Office of the Columbia River that coordinated the Trios/Easterday water right.

CELP has worked to protect Columbia River flows for the past two decades.  In 2004 the National Academy of Sciences published its analysis on Columbia River flows, warning Washington State that water rights, water diversions for irrigated agriculture, flow adjustment for hydropower generation, and warming water temperatures from climate change threaten the survival of salmon and other fish and wildlife values.

Links to more background information:

The Unkindest Mitigation – how Ecology’s new water impairment ideas will hurt rivers and fish

CELP, Columbia River Vision, (Nov. 2000)

National Academies of Science, Managing the Columbia River:  Instream Flows, Water Withdrawals, and Salmon Survival


CELP prevails! Federal Court rules that Spokane River PCB Cleanup is Not Adequate

Spokane Falls

Spokane Falls

In Spokane, the U.S. District Court Judge Barbara Rothstein issued a decision today in the matter of Sierra Club and Center for Environmental Law & Policy (CELP) versus U.S. Environmental Protection Agency (EPA).  The Court ruled that EPA abused its discretion in agreeing to allow a polluter-dominated committee process substitute for a cleanup plan for Spokane River PCBs.  Sierra Club & CELP filed the citizen lawsuit against EPA in 2011.  The Spokane Tribe of Indians intervened in support of the lawsuit, and the Department of Ecology, Spokane County and Kaiser intervened to defend EPA.

“Today is a good day for the Spokane River,” said Matt Wynne, Spokane Tribal Councilman and Chairman of Upper Columbia United Tribes.  “Judge Rothstein confirmed that delay in cleaning up the River is unacceptable, and found that deadlines and pollution limits are necessary.”

In 2011, the Washington Department of Ecology reversed course and abandoned efforts to adopt a PCB cleanup plan, largely because of political opposition by Spokane River polluters, who would be required to reduce PCBs in effluent by up to 99% to meet both Washington State and Spokane Tribe water quality standards.  These polluters include Inland Empire Paper, Kaiser, and the Liberty Lake, Spokane County, and City of Spokane sewage treatment plants.  Instead, Ecology formed the Spokane River Toxics Task Force and required the polluters to participate, but also gave them control over the goals and activities of the Task Force.

“The Spokane River is Washington’s most polluted river when it comes to PCBs,” said Rachael Osborn, senior policy adviser for the CELP and Spokane River Project Coordinator for Sierra Club’s Upper Columbia River Group.  “Obtaining a PCB cleanup plan is essential to public health and especially important for people who eat fish from the Spokane River, including immigrant populations and Spokane Tribal members.”

“After years of delay on the part of the agencies, the Court today rejected the state’s ‘fox in chicken coop’ strategy of putting the polluters in charge of a cleanup plan,” Osborn continued, “Instead, the Court has ruled that a real cleanup plan, prepared within a reasonable timeframe, is required.”

THE FEDERAL COURT DECISION:

Today’s federal court decision finds that the Task Force is not a proper substitute for a Clean Water Act mandated TMDL, stating (at page 21):

There comes a point at which continual delay of a prioritized TMDL and detours to illusory alternatives ripen into a constructive submission that no action will be taken.  With the Task Force as presently proposed, Ecology is coming dangerously close to such a point, and with EPA’s support.   Accordingly, the Court finds that the EPA acted contrary to law in finding the Task Force, as it is currently comprised and described, a suitable “alternative” to the TMDL.

The court decision also dictates next steps, ordering EPA to report back to the Court within 120 days with a specific plan to complete a PCB TMDL (at page 22):

. . . EPA shall work with Ecology to create a definite schedule with concrete goals, including: clear statements on how the Task Force will assist in creating a PCB TMDL in the Spokane River by reducing scientific uncertainty; quantifiable metrics to measure progress toward that goal; regular checkpoints at which Ecology and the EPA will evaluate progress; a reasonable end date, at which time Ecology will finalize and submit the TMDL for the EPA’s approval or disapproval; and firm commitments to reduce PCB production from known sources in the interim.

ABOUT PCBs and TMDLs:

PCBs are a group of industrial compounds associated with liver dysfunction and cancer, and are now banned in the United States.   Washington State recognizes that the Spokane River is impaired for PCBs.  The Department of Ecology issues pollution permits (known as NPDES permits) to companies (such as Inland Empire Paper and Kaiser) and municipalities, allowing them to pollute the Spokane River up to certain thresholds.

The federal Clean Water Act requires a clean-up plan (called a TMDL or “total maximum daily load”) before issuing any permits that would add more PCBs to the Spokane River.  The Washington Department of Ecology is attempting to side-step the law by not preparing a PCB cleanup plan, and issuing NPDES permits anyway.


Sierra Club and CELP are also defending their victory in their 2011 challenge to the pollution discharge permit issues to Spokane County’s new sewage treatment plant.  In 2013, the Pollution Control Hearing Board (PCHB) ruled that the “state of the art” plant was discharging PCBs and had the potential to violate state and tribal water quality standards.  The PCHB directed Ecology to issue a new permit with appropriate pollution limits.  Instead of issuing such permit, Ecology and Spokane County appealed the matter to Thurston County Superior Court.  That court affirmed the PCHB in the fall of 2014.  Ecology and the County recently appealed the matter to the Court of Appeals.  The County continues to operate the plant, and to discharge PCBs into the Spokane River.

Sierra Club and CELP are represented by Richard Smith of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation.

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