Monthly Archives: April 2015


Check out our April edition of Washington Water Watch

Click here to read our newest installment of the Washington Water Watch newsletter.

This month, you’ll find articles introducing our new Staff Attorney, Dan Von Seggern, discussing the drought declaration in the state, the status of the Enloe Dam Hydro Project, a summary of the recently released”Freshwater Withdrawals in WA, 2010″ report, and more.

04172015 drought areas - dept of ecology


Okanogan PUD Takes Steps To Explore Enloe Dam Removal

salmon jumping Similkameen Falls, Colton Miller, July 2014

Salmon jumping Similkameen Falls. (photo: Colton Miller, July 2014)

CELP and partners returned to court on Friday, April 3, to challenge a water right that could reduce water flowing in Similkameen Falls, in north central Washington, to a trickle. The Falls, located on the Similkameen River just downstream of Enloe dam, are a popular scenic attraction and have important cultural and ecological values.

Okanogan Public Utility District (OPUD) purchased Enloe dam in 1953, but has not generated power since 1958.  After two failed attempts to re-electrify the dam in the 1990’s, OPUD obtained a federal energy license in 2013.  CELP challenged the water quality certification and won a decision that the proposal to divert 90-99% of the natural flows around the waterfalls lacked scientific foundation.

After oral argument on the water right appeal, Judge Gary Tabor of Thurston Superior Court ruled from the bench in favor of the Department of Ecology and OPUD.  For CELP, the courtroom saga continues a 10-year effort to restore and protect the Similkameen River, including opposition to two new dam proposals, the Shankers Bend and the Fortis BC projects, that are sidelined for the time being.

Search is on for a lead agency to remove Enloe dam

One very positive development has occurred in the face of continued litigation and local ratepayer opposition to the project’s $50 million price tag.  On April 6, OPUD Commissioners passed a resolution indicating willingness to work with CELP and its conservation partners in finding a lead agency for Enloe dam removal.  Both the Lower Similkameen River Band in B.C. and the Confederated Colville Tribes have endorsed the concept of dam removal.

OPUD is exploring all options, including its original plan to re-energize Enloe.  However, the case in favor of dam removal is persuasive:

  • Re-energizing the dam will be a major money-loser for local ratepayers;
  • De-watering Similkameen Falls is illegal, and CELP’s water quality challenge creates significant uncertainty about the amount of water available for power generation; and
  • Removing Enloe dam will clear the way for salmon and other species to access 300-plus miles of river and stream habitat, a huge opportunity for both fish and people.
salmon blocked by Enloe dam, Colton Miller, July 2014

Salmon, blocked at Enloe dam. (photo: Colton Miller, July 2014)

The ongoing legal challenge

CELP, American Whitewater and North Cascades Conservation Council have challenged a decision by the Department of Ecology to issue a water right to the Okanogan PUD for renewed operation of Enloe dam.  The water right appeal raises two issues.  First, as Andrea Rodgers of the Western Environmental Law Center, puts it:  “Ecology is required to determine whether granting a water right will harm the public interest before issuing a permit. Here, they propose to defer that decision until after the project is built, violating the four-test requirement for allocation of public water resources.”

Attorney Rachael Paschal Osborn described the second argument in the case:  “The new water right for the dam fails to protect instream flows as adopted into the Similkameen River rule. This directly contradicts a 2013 Supreme Court decision regarding the Skagit River, holding that these rules function as ‘water rights for the river’ and may be violated only in the most narrow of circumstances.

Economic studies show that re-energizing Enloe Dam doesn’t make financial sense as is, and will be even more expensive if minimum flow releases are increased.  OPUD, having spent $12 million to obtain a federal energy license for the project, is placing ratepayer dollars at substantial risk.  Depending on the outcome of the aesthetic flow studies to protect Similkameen Falls, OPUD may have far less water to divert for hydropower than originally permitted.

The river advocacy groups in the legal challenge are all members of the Hydropower Reform Coalition, and are represented by public interest attorneys Andrea Rodgers of the Western Environmental Law Center and Rachael Paschal Osborn and Dan Von Seggern of CELP.

Links –

Conservationists’ Petition for Review


Drought Declared in Washington

Governor Inslee’s recent declaration of drought in 24 of Washington’s 62 watersheds has triggered a flurry of activity.   By law, drought is declared when a region’s water supply is at 75% of normal (or worse) and this water deficit will cause “hardship” to water uses and users.

04172015 drought areas - dept of ecology

Washington has experienced a fairly normal year for rain, but air temperatures over the winter were nearly 5 degrees F higher than normal, making the 2014-15 winter the warmest on record.  As a result, snow fall was scant.  Mountain snowpack is like a natural reservoir.  As accumulated snow melts over the summer, it percolates into groundwater and feeds the headwaters of streams.   Water will flow in streams during summer months, even with no rain, as a result of snowpack and groundwater reserves.  This year, snowpack is substantially less than normal for the Olympic, Cascade and Northern Rockies mountains, and as a consequence, we are facing a very dry summer season in Washington.

Western US Snowpack (4-1-15)

The biggest impact will be on fisheries.  Irrigated agriculture is also taking a hit, especially in the Yakima basin.  Municipal water supplies, especially for cities with big reservoirs (e.g., Tacoma, Seattle, Everett) appear to be in good shape.

In addition to physical aspects, drought has economic and political dimensions.  The Department of Ecology convenes a Water Supply Advisory Committee (WSAC) to make recommendations about

drought activities.  The WSAC has requested a $9 million appropriation to drill emergency wells, expedite water transfers, and provide loan and grant funding to farmers.

In an attempt to alleviate instream flow depletion, Ecology and others are conducting “reverse auctions” in the Yakima, Walla Walla and Dungeness basins.

Western US Summer Streamflow Forecast (4-1-15)

Essentially the state offers to lease water rights from farmers who are willing to forego irrigation this summer.  The goal is to keep water in upper tributaries that provide habitat for endangered salmon species.

Ecology is also seeking to lease or purchase existing water rights to offset use of emergency wells in the lower Yakima Valley.  These wells were drilled in 1977 but may not be used except in drought circumstances.  Since 1977, lawsuits and a US Geological Survey study have established that virtually all groundwater in the Yakima basin feeds into the lower Yakima River.  Thus, pumping from emergency wells without mitigation would impair existing users and instream flow water rights.   The bottom line is that water in the Yakima River basin is over-allocated, and in water-short years, junior water rights (called “pro-ratables”) take a big hit.  Ecology will not authorize use of emergency wells without mitigation.

This raises public policy questions.  Should it be the responsibility of Ecology to find “mitigation water” for junior users during a drought?   Should Washington taxpayers underwrite the purchase of water for junior users?

Of particular concern, when junior users convert from annual to perennial crops, dramatically increasing the financial risk associated with drought, who bears that risk?  The water users, or the public?

The Legislature has also convened a “Joint Legislative Committee on Drought” which is meeting regularly to discuss drought actions.   Their meetings can be viewed on TVW.

The drought declaration may be extended to cover even more watersheds, and a statewide declaration is even possible.   Large Puget Sound municipalities are comfortable with full reservoirs, and do not want a drought declaration that would lead their customers to conserve (and thereby reduce revenues).   But, smaller purveyors and stream flows around the state will be hurting given the snowpack scenario.

Drought declarations can lead to much mischief in the public policy arena.  CELP will report on drought activities throughout the spring and summer months to assess how well agencies and the Legislature respond in protecting public resources, i.e., public waters and public funds.

 


Uncertainty Remains About Water Availability for Proposed Hydro Project

Similkameen Falls2

Similkameen Falls in front of Enloe Dam

Olympia, WA – River advocacy groups will return to the courtroom on Friday, April 3, to challenge a decision that could reduce Similkameen Falls in Northeastern Washington to a trickle. The Falls, located on the Similkameen River just downstream of the abandoned Enloe Dam, are a popular scenic attraction and have important cultural and ecological values. Okanogan Public Utility District is currently seeking to re-energize Enloe Dam, although uncertainties surrounding the amount of water available for the project raise questions about its future costs and viability.

The Center for Environmental Law & Policy, American Whitewater and North Cascades Conservation Council are challenging a decision by the Washington Department of Ecology to issue a water right to the Okanogan PUD for the renewed operation of Enloe Dam. A Pollution Control Hearings Board (PCHB) decision in 2013 allows Ecology and PUD to delay required aesthetics studies until after the project is completed, raising concerns that there is not enough water for both hydropower production and aesthetic flows.

“Ecology is required to determine whether granting a water right will harm the public interest before issuing it. Here, they are deferring that decision until after the project is built, something they cannot do when allocating public water resources” said Andrea Rodgers, an attorney representing the river groups.

Economic studies show that re-energizing Enloe Dam doesn’t make financial sense, and will cost local ratepayers even more money if aesthetic and minimum flows are required.

“Ultimately, the PUD doesn’t know how much water they will actually have to work with to generate power,” said Thomas O’Keefe, Pacific Northwest stewardship director for American Whitewater. “This puts a huge amount of ratepayer dollars at risk.”

Despite the economic uncertainty, the PUD has stated that it plans to move forward with re-energizing the dam, which has sparked backlash from ratepayers.

salmon jumping over Similkameen Falls

Salmon jumping over Similkameen Falls

“To avoid this monumental loss, OPUD has no choice but to pass the costs along to the ratepayers,” said Jere Gillespie of the Columbia River Bioregional Education Project. “If Enloe proceeds, costs to construct, maintain and operate, and later remove the dam, would place in debt the rate-paying families $180 million over 50 years.”

“The new water right for the dam fails to protect instream flows as required by the Similkameen River rule,” said Rachael Paschal Osborn.  “This directly contradicts a 2013 Supreme Court decision regarding the Skagit River, holding that these rules are ‘water rights for the river’ and may be violated only in the most narrow of circumstances.”

Oral argument will be held on April 3, 2015, 1:30 p.m. at Thurston County Superior Court, 2000 Lakeridge Drive SW, Building 2, Olympia, Wash. The river groups are all members of the Hydropower Reform Coalition, and are represented by public interest attorneys Andrea Rodgers and Rachael Paschal Osborn.

Helpful Links and Documents:

PCHB Decision

Conservationists’ Petition for Review

Enloe Dam remains an Economic Loser

Contacts: 

Andrea Rodgers Harris, Attorney, 206.696-2851, rodgers@westernlaw.org

John Osborn (Center for Environmental Law & Policy) 509.939-1290, john@waterplanet.ws

Thomas O’Keefe (American Whitewater) 425.417-9012, okeefe@americanwhitewater.org

Rich Bowers (Hydropower Reform Coalition) 360.303-9625, Rich@hydroreform.org