Icicle Creek: a win for waters of Washington

News Release:  May 18, 2018

Fish Hatchery polluting Icicle Creek at center of ruling allowing Washington State to protect state waters

Contacts –

  • Dan Von Seggern, Center for Environmental Law & Policy (CELP),  dvonseggern@celp.org  206.829-8299
  • Kurt Beardslee, Wild Fish Conservancy, kurt@wildfishconservancy.org 425-788-1167

On May 14 the Washington Pollution Control Hearings Board (PCHB) ruled against the U.S. Fish and Wildlife Service (FWS), operator of the Leavenworth Fish Hatchery, and in favor of Icicle Creek advocates Center for Environmental Law & Policy (CELP) and Wild Fish Conservancy. Late last year, CELP and Wild Fish Conservancy appealed the state’s certification under Section 401 of the Clean Water Act for the federal hatchery to the PCHB. The FWS asked the PCHB to dismiss the appeal, arguing that state water quality certifications are not independently enforceable and cannot be effectively modified after a federal permit is issued, and therefore the challenge to the state certification was moot. The PCHB rejected the FWS argument. The PCHB concluded that state-issued Section 401 certifications are tailored to protect water quality in every state water body and are independently enforceable.

“This decision is a victory for protecting Washington’s waters,” said Dan Von Seggern, CELP staff attorney. “It affirms the State’s ability under the Clean Water Act to place meaningful conditions on a water user even where a Federal permit has been issued. The decision allows CELP and other water advocates to work through the courts to enforce these conditions.”

Icicle Creek flows out of the Alpine Lakes Wilderness through the Bavarian-themed town of Leavenworth, Washington, and supports important fisheries including endangered Chinook salmon and threatened steelhead.

“We commend the PCHB’s ruling against the US Fish and Wildlife Service’s Leavenworth National Fish Hatchery,” said Kurt Beardslee, director of Wild Fish Conservancy. “We believe State and Federal government facilities should be a positive example of environmental stewardship for the rest of the community. Unfortunately, this hatchery is not a good neighbor and has set a poor example. It is in fact the largest polluter of Icicle Creek.”

The Leavenworth National Hatchery was first constructed between 1939 and 1941 near Leavenworth, Washington, as a mitigation project for Grand Coulee dam. It is located on the banks of Icicle Creek approximately three miles from the confluence with the Wenatchee River. The hatchery has a long history of violating state and federal environmental laws, despite repeated attempts to bring it into compliance to protect Icicle Creek.

Wild Fish Conservancy and CELP are represented by Kampmeier & Knutsen, PLLC of Portland, OR.

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Background

The U.S. Fish and Wildlife Service (USFWS) discharges a wide variety of pollutants into Icicle Creek from the federal hatchery located near Leavenworth, Washington. Pollutants released from the Hatchery to Icicle Creek include disease control chemicals, pathogens, nitrogen, phosphorus, antibiotics, chemicals used for disinfection and other fish culture purposes, residual chemical reagents, salts, and chlorinated water. The excess phosphorus discharged by the Hatchery has caused violations of the applicable water quality criterion for pH in lower Icicle Creek. This phosphorus loading also contributes to violations of water quality standards in the Wenatchee River.

The Clean Water Act is the main mechanism through which pollution of our waters is prevented, and the Hatchery is obligated to apply for a permit and to operate according to its conditions.

A National Pollutant Discharge Elimination System (NPDES) permit is required by the Federal Clean Water Act (CWA) and would place limits on pollutant discharges. States, using “401 certifications,” can compel the federal government to protect state waters. On July 28, 2017, the Washington Department of Ecology issued a draft Clean Water Act section 401 certification for a new permit. State certifications must include appropriate limitations and monitoring requirements to assure that the applicant for the Federal permit (USFWS) will comply with applicable effluent limits, prohibitions, standards of performance and appropriate requirements of state law.

For 37 years, the FWS operated the Leavenworth Fish Hatchery without a valid permit in violation of the Clean Water Act. On November 22, 2017 both a new federal permit and state 401 certification were issued. On December 21, CELP and Native Fish Conservancy appealed the state 401 certification to the PCHB. The federal permit was not appealed, and took effect on January 1, 2018. USFWS asked the PCHB to dismiss the appeal because Icicle Creek advocates had appealed the state certification, but not the federal permit.