Check out the latest edition of our monthly newsletter, Washington Water Watch. In this month’s issue you’ll find an article on the current water bills in the Washington State legislature, an update on CELP’s recent motion for summary judgment in the Leavenworth National fish hatchery case, an article on the Lyre-Hoko watershed, and a notice about our upcoming Spokane event, Winter Waters.
This is the first in a series of blog posts examining unprotected watersheds in Washington State.
Background on Instream Flow Rules in Washington State
In 1998, the Washington State Legislature passed the Watershed Management Act, which provides a framework for local governments, affected Indian Tribes, citizens and stakeholders to develop plans to manage the water resources within their watershed. There are 62 watersheds or Water Resource Inventory Areas (WRIAs, pronounced “Why-rahs”) within Washington State.
In addition to the mandatory issue of water quantity, planning groups may choose three optional components to include in their plans: making instream flow recommendations that the Department of Ecology can use to establish instream flows by rule, water quality, and fish habitat. While some of the 62 watersheds have recently adopted instream flow rules (like the Dungeness Rule which was adopted in 2013, and which CELP successfully helped to defend in court in 2016), far more have instream flow rules that are decades old or no instream flow rule at all.
Instream flow rules act as a “water right for the river,” and function the same way as any other legal water right, protecting instream resources from future water withdrawals. These rules are important for ensuring that there is enough water in rivers and streams to provide for clean water, fish habitat, recreation, and aesthetics, and are especially important given the threat of climate change and the state’s historic drought of 2015.
WRIA 19: The Lyre-Hoko
WRIA 19, designated as the Lyre-Hoko watershed, is located in Clallam County in the northwestern most part of the Olympia Peninsula, spanning from the tip of Cape Flattery to just west of the Elwha River basin. WRIA 19 encompasses the major waterways of the Lyre, Seiku, Hoko, Clallam, Pysht, East and West Twin Rivers, and Salt and Deep Creeks, which drain directly into the Strait of Juan de Fuca along with many other smaller streams.
CELP has identified WRIA 19 as a critical watershed in Washington State. The Olympic Peninsula was one of the first three regions where Governor Inslee declared drought conditions in 2015 (the Lyre-Hoko watershed was named specifically along with the Quilcene-Snow, Elwha-Dungeness, Sol Duc-Hoh, and Queets-Quinault). WRIA 19 is also an important watershed for salmon – it encompasses 27 separate salmon-bearing rivers and streams that support Chinook, chum, and coho. Although the watersheds in the Lyre-Hoko area don’t support salmon runs listed under the Endangered Species Act, the nearshore areas of WRIA 19 serve as an important migratory corridor for salmon populations (including those listed under the ESA) leaving or entering the Strait of Juan de Fuca. According to a 2015 Salmonoid Restoration Plan for WRIA 19 published by the North Olympia Peninsula Lead Entity for Salmon, however, many of the salmon populations in individual basins are considered depressed or critical, and are projected to decline.
Despite its obvious need for protection, WRIA 19 does not have an instream flow rule. Clallam County formed an official planning unit under the Watershed Management Act and initially unanimously agreed on instream flow recommendations in 2005, but disagreement over the specific numbers ultimately killed the plan in 2010 (here’s a link to the planning unit’s 2009 draft plan). While the Makah and Lower Elwha Clallam tribes supported the proposed instream flow numbers in the interest of fish habitat and adequate stream flows, the Clallam County PUD opposed them as being too high to allow for continued development and human consumption, (the timber industry also firmly opposed parts of the plan relating to riparian buffers). With the groups at an impasse, the planning process unraveled, and no plan was approved.
If a local planning unit fails to agree on a plan, the responsibility for instream flow rulemaking falls back to the Department of Ecology. Although it is unclear whether Ecology has an obligation to enact an instream flow rule in this circumstance, the fact remains that there is ample evidence that a rule needs to be put in place. In its own 2011 report on water availability in the Lyre-Hoko watershed, the Department of Ecology stated that the Department of Fish and Wildlife had recommended against issuing new water rights in sections of WRIA 19 “in order to protect fish populations.” Despite the fact that much of the requisite research and work was done in the nearly decade long local planning process, there remains no instream flow rule in place for the Lyre-Hoko watershed six years later.
Ecology has provided protection for many watersheds around the state – for example, CELP worked with the Department of Ecology to successfully defend the agency’s instream flow rule for the Dungeness River in 2016. However, CELP urges Ecology to take timely action in critical watersheds like the Lyre-Hoko in order to ensure healthy flows, abundant water for future generations, and plentiful habitat for fish.
If you are interested in helping to secure protections for the Lyre-Hoko Watershed, email CELP at firstname.lastname@example.org.
by CELP Executive Director Trish Rolfe and Government Affairs Specialist Bruce Wishart
Water is a major topic in the legislature again this year, and several bills have been introduced that would undermine or overturn several key Washington Supreme Court water law decisions, including the Hirst decision on permit exempt wells handed down in October. CELP has been busy testifying on these bills in Olympia to ensure protection of Washington’s water resources.
Senate Bills that CELP Opposes: These bills would negatively impact instream flows and salmon.
- SB 5010: Avoiding Ecology Review of Expansion of Agricultural Water Rights as a Result of Claimed Conservation
While we support and encourage water conservation, this bill would bypass a process in existing law to ensure that when a farmer conducts conservation then sells or transfers the water, the water is legally available for the new use. Farmers who wish to do conservation can use the established “Trust Water Rights Program” in current law to avoid relinquishment of the water saved by conservation practices
- SB 5005: Converting an Agricultural Right to a Municipal Right without Ecology Review
Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would avoid that review, allowing relinquished rights to be revived. House companion bill is HB 2084.
- SB 5003: Allowing New Projects to Mine Instream Flows
This bill overturns several recent State Supreme Court decisions on water law, allowing approval of new projects that reduces instream flows necessary to protect endangered salmon. Ecology could use different tools to impair instream flows to support new land use development and other new out of stream projects. This would result in giving a super priority to permit-exempt wells, harming senior water rights holders and instream flows.
- SSB 5002: Requiring Leased Water Rights used as Mitigation to be Replaced by Permanent Water
This bill allows temporary, leased water to be used to mitigate ongoing use of domestic wells.
- SB 5239: Overturning Hirst and Allowing Wells to Harm Instream Flows
Overturns Hirst and allows unmitigated development to harm existing users of water, including instream flows. Completely undermines instream flows, making them subordinate to new wells.
Senate Bill CELP supports with concerns
- SB 5024: Allows Development to Proceed under Hirst under Mitigation Plans
Allows for new development to occur in rural areas without adequate water supply provided the County adopts a mitigation plan. A county is given five years to allow new development before mitigation must be in place. Follows models used successfully in Clallam and Kittitas Counties which allow salmon-friendly development.
House Bills that CELP Opposes. These bills would negatively impact instream flows and salmon.
- 1084 Converting an Agricultural Right to a Municipal Right without Ecology Review
Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would bypass that review, allowing relinquished rights to be revived. Senate Companion bill 5005
- 1348 Concerning the priority in the state water code assigned to various beneficial uses.
Establishes that regardless of priority date, instream flows rules are always junior to the beneficial use of water for irrigation, commercial, industrial, or potable water purposes. Changes water law, and makes Instream flow water rights a lesser water right. Would destroy meaningful protections for instream flows and harm fish and other wildlife.
- 1349 Declaring any minimal cumulative impacts of permit-exempt groundwater wells on water levels to be overwhelmingly offset by state investments in fish habitat improvement projects.
Establishes that permit-exempt groundwater withdrawals are deemed to not impair senior water rights, presumably including instream flow rules, and that the cumulative impact from permit-exempt wells on instream flows are to be “forever fully mitigated.”
Allows for out of kind mitigation for impairment of Instream flows. Makes Instream flow water rights a lesser water right. Will harm fish and wildlife because other habitat improvements are meaningless if there isn’t enough water in the streams for fish. A water right is a right in perpetuity, but habitat improvements are not permanent.
- 1382 Establishing a rebuttable presumption that permit-exempt groundwater withdrawals do not impair instream flows or base flows. Establishes that permit-exempt groundwater withdrawals are presumed to not affect or impair instream flows unless “conclusive evidence” is provided proving otherwise.
This would result in giving a super priority to permit-exempt wells, harming both senior water right holders and instream flows.
- 1394 Regarding the processing of applications for Columbia river water right permits to clarify legislative intent to ensure that the rules can be implemented as written.
This bill would allow out of kind mitigation for impairment of Instream flows on the Columbia River System. It would harm instream flows and the fish and wildlife that depend on adequate water in the river. This is a companion to SB 5269.
- 1459 Considering the full hydrologic cycle in the review and approval process of new water uses. Changes the groundwater code and GMA such that Ecology and counties have to look at the “full hydrologic cycle” when assessing the impact of new groundwater withdrawals. This would result in impairment of streamflow, because removal of trees does not guaranty that groundwater is recharged or that streamflow is improved.
- 1460 Redesigning the transfer of water rights, including the statutory process of relinquishment. Changes the relinquishment statutes, requiring that Ecology provide conclusive evidence to prove water relinquishment. Establishes that water rights relinquished go into a special trust that be made available for irrigation, municipal, and other beneficial uses. This undermines water law by removing the “use it or lose it” provision designed to make sure water is put to a beneficial use. Shifting the burden to Ecology to prove that the water hasn’t been beneficially used, which is almost impossible to do.
- 1748 Modifying provisions within the growth management act to improve affordable housing opportunities in rural communities; Rolls back the Hirst Would allow permit-exempt wells to impair senior water rights.
House bill that CELP supports:
- 1172 Encouraging low-water landscaping practices as a drought alleviation tool.
House bill that CELP supports with concerns:
- 1760 Relating to off-site mitigation for projects
Protecting Lake Coeur d’Alene – Water is Life
Winter Waters Celebration, March 10 – Honoring the Coeur d’Alene Tribe
When: March 10 (Friday) 6:30 p.m. – 9:30
Where: Spokane – historic Patsy Clark Mansion, 2208 W. 2nd Ave
What: Honoring our heroes – also music, desserts and other small foods, wines
Tickets: $35 per person (purchase on-line or at the door)
To help sponsor the event or for more information, contact: John Osborn MD email@example.com 509.939-1290
- Protecting Lake Coeur d’Alene (must see – short film)
Sponsors: Honoring the Coeur d’Alene Tribe
Upper Columbia United Tribes * Eastern Washington-Idaho Synod, Evangelical Lutheran Church in America * Eymann Allison Hunter Jones P.S. * Linda Finney & W. Thomas Soeldner * John & Joyce Roskelley * EnviroScience * Kathy Dixon * Columbia Institute for Water Policy * Rachael & John Osborn
Honoring the Tribe
In the homeland of the Coeur d’Alene Tribe, nearly a century of hard-rock mining in the Coeur d’Alene Mining District led to release of massive mining and smelting wastes into streams and rivers. The extent of the pollution is truly staggering. There would be no cleanup — no hope for protecting Lake Coeur d’Alene and the Spokane River from mining pollution — without the Coeur d’Alene Tribe. The Tribe’s work to protect and restore their homeland is historic with enduring benefits for the Tribe and indeed for all life. We wish to thank the Tribe for their assistance in providing background information for the following summary.
Tribal World View
The Coeur d’Alene Tribe were the original land managers in the Basin. For the Tribe, all things living are interconnected. Relationship with other life is based on kinship rather than human supremacy. Resources are always to be used in a respectful and sustainable manner. Decisions include how Tribal descendants will be affected seven generations into the future.
Homeland and natural resource overview
- Historically 4 million acres: located in what is now the Idaho Panhandle from Montana to Washington, Lake Pend Oreille to the Clearwater breaks.
- Lands and waters were pristine until the advent of white settlement in the mid-1800s.
- Since then ecological conditions changed drastically: logging practices have eliminated old growth forests, clear-cut hillsides, changed species diversity, created a highly concentrated network of roads, and displaced wildlife species; agriculture has greatly increased agricultural runoff of pesticides, herbicides and nutrients; mining has poured hundreds of millions of tons of tailings, liquid chemicals and airborne contaminants into the Basin.
All of these practices derived wealth for the few, jobs for some, and left a legacy of negative natural resource impacts for all.
As a result of such impacts, the Tribe decided to take action and championed some major efforts to address the many problems facing their natural resource base (the center of their culture).
- EPA-related work: In the mid to late 1980’s, EPA began Superfund work in the Silver Valley. The Tribe immediately became involved in the cleanup – at first informally but later through cooperative agreements with EPA. Local, regional and State politics hoped the cleanup would be contained to a $200 million cleanup within a small portion of the Basin (the 21-square-mile “box”). Through the Tribe’s oversight and incessant urging of the EPA process, the original cleanup plan has been greatly increased and has led to three Records of Decisions (ROD’s 1, 2, and 3). To date EPA has spent over $600 million and still has yet to determine agency clean up actions for the lower 20 miles of the Coeur d’Alene River and associated lakes and wetlands, or what to do with Coeur d’Alene Lake. The Tribe believes that several billion dollars of EPA cleanup is yet to come.
- NRDA lawsuit and the Lake Case: In 1991, the Tribe filed two major lawsuits: Tribe v. Idaho (the Lake Case) and the Natural Resource Damage Assessment (NRDA) lawsuit (Tribe v. Gulf Resources et al.) These lawsuits set the stage for what became many years of protracted litigation. The NRD lawsuit sought $3 billion dollars for the injury to natural resources brought upon by the release of hazardous substances. The Lake ownership case sought to reaffirm the Tribes ownership of the Lake so the Tribe could then proceed to address the myriad of environmental problems left unchecked by the State of Idaho. Ultimately the Tribe prevailed in both lawsuits. The Tribe has been and continues to be on the Trustee Council responsible for the development and implementation of Restoration Plan to spend the $140 million brought about through the lawsuits.
- Lake Management Plan Development and Implementation: The Lake is the center of the Tribe’s creation story. Their name translates to, “Those that are found here.” Although the Tribe would have wanted EPA to undertake the protection of the Lake, politics has not yet allowed this. So rather than have a Superfund cleanup for the Lake, the Tribe was left with little option but to agree to coordinate with the State of Idaho to develop and implement a Lake Management Plan (LMP) that would, in essence, be the “non-CERCLA” approach to manage lake-bed metals contamination. After seven years of lackluster implementation (due to lack of funding and no political will to enact regulations) Tribal water quality data are indicating declining water quality. This indicates the LMP is proving to be ineffective. The Tribe has asked EPA to once again revisit their “deferred” decision of what they will do to protect the environment from future heavy-metals contamination.
- Water Rights Litigation: 10 years ago the Tribe was forced by the State of Idaho to be a part of the north Idaho water rights adjudication process. This has been a battle to develop Tribal water claims. The Tribe now faces a trial to prove entitlement to federally reserved water rights.
- Avista Mitigation: After the most recent FERC relicensing process that ended in 2011, the Tribe received $100 million to conduct natural resource restoration efforts to mitigate for losses to Tribal resources as a result of Avista Corporation project operations. Tribal investments include; aquatic weed (milfoil) management, wetlands enhancement, cultural resources protection, and water quality monitoring.
- Capacity Building: All during the last 25 years the Tribe continued to build internal technical capacity to tackle the complex and daunting environmental challenges in the Basin. The Coeur d’Alene Tribe has a Natural Resources Department and a Lake Management Department numbering about 75 people. Programs and major focus include but are not limited to:
- Fisheries (stream restoration, native species protection, scientific data collection)
- Wildlife (wildlife monitoring, habitat enhancement, big game management)
- Air Quality
- Water Resources (water quality standards development and enforcement, invasive species management and predictive lake modelling)
- Hazardous Waste Management (restoration of injured resources, LMP implementation)
- Shoreline Protection (shoreline debris management)
- Forestry and Fire Management (forest health, fire prevention and suppression)
- Pesticides Enforcement (education and enforcement)
- Lands and Realty
- Environmental Planning (coordination of environmental work on and off the Coeur d’Alene Reservation)
- Recreation Management (including operation and management for the Trail of the Coeur d’Alene and Camp Larsen).
In closing, the Coeur d’Alene Tribe has taken on the leadership role as steward of their homeland’s natural elements. In order to protect and restore the waters and lands, the Tribe has engage in a spectrum of efforts from litigation to cooperative agreements. The Tribe’s unwavering dedication to it stewardship responsibilities stems from the creators’ gift of their Land and surrounding homeland.
The last issue of 2016 is here! Read a preview of what to expect during the upcoming legislative session, an article by CELP’s Dan Von Seggern on the recent Hirst decision, and a summary of our December CLE.
Check out the October edition of Washington Water Watch. In this issue: updates on the Dungeness River rule challenge and the Hirst case, an article on the potential environmental impacts of Ecology’s Chehalis Basin Strategy, and details on our December 1st CLE and December 7th Olympia fundraiser!
October 25, 2016
Dan Von Seggern (Center for Environmental Law & Policy)
Court Upholds Dungeness Instream Flow Rule that protects river and fish!
Seattle, WA – On Friday, October 21, 2016, Thurston County Superior Court Judge Gary Tabor upheld the Instream Flow Rule for the Dungeness River basin, denying a challenge from a group of property owners and developers. The Center for Environmental Law and Policy (CELP) intervened in this matter to defend the Rule, working with the Department of Ecology. CELP Staff Attorney Dan Von Seggern argued the case along with Ecology’s attorneys. After the decision, he stated: “This is a win for the environment and for water management in Washington. The Dungeness Rule strikes a balance by protecting streamflows, fish, and senior water users, while still providing water for responsible development. CELP is pleased with Judge Tabor’s decision and hope that this Rule will provide a guide to protecting other rivers in our state.”
In upholding the Rule, Judge Tabor held that the Rule was not unlawful and that Ecology did not exceed its authority when it adopted the Rule. He also reaffirmed that permit-exempt wells are subject to the “first-in-time” system of water appropriations used in Washington.
The Dungeness River is home to steelhead, bull trout, and four salmon species. Most of these fish are listed as “Threatened” under the Endangered Species Act. Low river flows, particularly in summer and early fall, block upstream migration of spawning salmon and risk causing extinction of these fish. Historically, much of the River’s flow has been diverted for irrigation, although irrigators have agreed to limit withdrawals to no more than one-half of the river’s summer flow. Uncontrolled development using private (“permit-exempt”) wells further depleted streamflows and added to the pressure on fish populations. The Dungeness Rule protects instream flows that are needed to support salmon populations and other instream values, while allowing new residential development through mitigated use of water from permit-exempt wells.
The Dungeness watershed is in the rain shadow of the Olympic Mountains and is unique in the Northwest as the only coastal watershed that is dry enough to require irrigation for agricultural crops. The River is relatively short, flowing 32 miles from the Olympic Mountains to the Strait. It is used by chinook, coho, chum, and pink salmon as well as steelhead, cutthroat, and bull trout. All salmon stocks are depressed relative to historic levels, and chinook, chum salmon and bull trout are listed as Threatened under the ESA. Insufficient stream flow has been identified as a key cause of reduced fish levels.
The Dungeness Rule was developed over a 20-year period through a collaborative process that included state, local, and Tribal governments, property owners, environmental groups, and water users. “This rule is an example of how rules can be set to make sure water resources in the rivers and streams are protected,” said Trish Rolfe, CELP’s Executive Director.
Water for development is provided through a water bank, which ensures that streamflows are not depleted by water for development. Amanda Cronin of Washington Water Trust explains that the Dungeness Water Exchange “provides an efficient one-stop shop for individual home builders in the Dungeness Valley. Eligible homebuilders simply begin the building permit process at the County and then submit a mitigation application and one-time payment to the Exchange.”
Judge Tabor ruled from the bench and a written decision is expected in the coming weeks. The case is Bassett et al. v. Ecology, Thurston County case No. 14-2-02466-2.
In an important new groundwater use decision, the Washington Supreme Court held that a county must ensure water is legally available before permitting development. This means that County land use planning must take water availability into account, and the County may not simply rely on Ecology’s instream flow rules to approve development.
Whatcom County v. Western Washington Growth Management Hearings Board (“Hirst”) involved a challenge to Whatcom County’s Comprehensive Plan ordinance. Under the Growth Management Act, counties develop Comprehensive Plans that designate certain areas for particular types of uses. A County’s GMA plan must “protect the environment and enhance the state’s high quality of life, including air and water quality, and the availability of water.” Among other types of use, the GMA requires that counties set aside land for “rural” development. This rural element must include measures regulating development to protect water resources.
Like other parts of Washington, Whatcom County faces increasing pressure on its water supplies, and most of the available water has already been spoken for. Ecology’s Nooksack River instream flow rule establishes instream flows for the Nooksack River and other streams in the basin. The Nooksack Rule closes most of the county to further appropriations of water, but says nothing about permit-exempt wells. The County’s rural land planning ordinance merely incorporated Ecology’s Rule – like the Rule, it did not address permit-exempt wells.
Hirst challenged the County’s rural land planning ordinance, on the grounds that it failed to protect rural water resources because it did not address rural permit-exempt well use. The Board agreed, finding that the Comprehensive Plan’s Rural Element did not adequately protect water resources. The Court of Appeals reversed the Board, holding that because the County’s planning ordinances were consistent with Ecology’s Rule, the County need not further regulate groundwater use. This ruling left Whatcom County’s groundwater essentially unprotected, as there were no limitations on the use of permit-exempt wells in much of the county. Hirst then petitioned for review by the Washington Supreme Court (CELP submitted an amicus curiae brief supporting Hirst et al.).
The Supreme Court reversed the Court of Appeals, holding that a county must protect groundwater supplies when developing its Comprehensive Plan, and simply deferring to Ecology’s Rule is not adequate. Justice Wiggins’ decision explains that the GMA places a duty on a County to make determinations of water availability. Because Whatcom County’s ordinance did not require a determination of water availability, it did not comply with the GMA. The decision reaffirms and extends the earlier Kittitas County v. Eastern Washington Growth Management Hearings Board case, in which the Supreme Court held that counties were responsible for land use decisions that affect groundwater resources.
Hirst is the latest in a series of Supreme Court decisions that extend protection for groundwater and instream flows against over-appropriation. It will have far-reaching effects on protection of groundwater and the associated streamflows and in reducing sprawl caused by unrestricted rural development.
Whatcom County v. Western Washington Growth Management Hearings Board, No. 91475-3 (October 6, 2016).
Read the full decision here.
In this month’s issue of Water Watch, read an update on the Enloe case, a background of the Chehalis watershed and recommendations, articles on the H2KNOW Cammpaign, Ecology’s draft CAFO permit, and an introduction of our Summer 2016 Legal Intern. In addition, learn more about CELP’s special Summer Membership special!