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.
by Dan Von Seggern
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!
This month’s issue of Water Watch features an interview with Professor William H. Rodgers, a remembrance of Sixnit leader Virgil Seymour, an update on the OWL v. KGH hearing, info on our Summer Membership Special, an interview with CELP’s new board member Steve Robinson, and more.
Remembering Virgil Seymour – Sinixt Leader
– by John Osborn MD
“We may have got pushed out of Canada. We may have got pushed out of Kelly Hill. We may have got pushed out of lower Inchelium. But we’re still by the River. We still stay by the River. Inchelium is right next to the River.
“Learning. Connecting. Understanding. Education. Outreach — are going to be the keys to connecting us back to the places and our people’s bones.
“People ask, ‘What do you want?’ I would like to be able to take care of our sacred places, our ancestors’ bones, and to have consultation for the resources that come out of there.”
Virgil Seymour, words from “One River, Ethics Matter” Gonzaga University, May 2014)
On the summer solstice in Inchelium, 500 people from both sides of the international border gathered to say goodbye to Virgil Seymour. Before leukemia took Virgil, in his short time as Arrow Lakes Facilitator, he did what he set out to do: “Learning. Connecting. Understanding. Education. Outreach.”
Virgil was a Sinixt member of the Colville Confederated Tribes. While serving three, two-year terms as a tribal councilman for the district of Inchelium he was chairman of the Natural Resources Committee. As an elected official Virgil focused on all issues related to the Columbia River, including the Columbia River Treaty, legacy pollution cleanup of the Columbia River and the litigation against mining giant, Teck Cominco. Virgil was a passionate advocate for Sinixt issues and their fate in Canada.
As the Arrow Lakes Facilitator, Virgil worked with tribes, First Nations, and nonindigenous people who all shared an interest in the future of the Columbia River. He was a “true diplomat” for the Sinixt People and, more broadly, for the Columbia River and salmon.
In March 215, Virgil and I traveled together for two days to Kelowna B.C. to meet with Anglican Archbishop John Privett and Roman Catholic Bishop John Corriveau about a “One River, Ethics Matter” conference in British Columbia. During those two days, Virgil shared the stories of his boyhood on the Reservation, teenage border crossings, Kelly Hill, and history of the Sinixt Nation.
Even from Virgil’s bed at Holy Family Hospital in Spokane, struggling with induction chemotherapy and fevers, he was still focused on his work as Arrow Lakes Facilitator. At one point Virgil handed his phone to connect me with people in Revelstoke.
From his hospital bed, Virgil talked repeatedly about the dugout canoes being launched that would converge at Kettle Falls, calling attention to the need to restore salmon. Virgil had so hoped to be a paddler in the Sinixt canoe, and just beamed when he talked about the canoes. While Virgil was able to return home to Inchelium “right next to the River,” he did not live to see the historic tribal gathering just upstream at Kettle Falls. Four days after his death, the Sinixt canoe — with Virgil’s hand carved into it – converged with canoes from the five tribes of the Upper Columbia to celebrate hope of salmon’s return. On that day, tribal leaders noted that Virgil, too, was there.
There are two messages that Virgil Seymour wanted us all to hear:
- First Nations, tribes, and nonindigenous people need to put aside their differences and work together to restore the Columbia River and return salmon to waters now blocked by dams; and
- the bones of the Sinixt ancestors exposed by the rise and fall of reservoir levels need to be protected, and the looting of Sinixt artifacts and sacred sites must stop.
Virgil was only 58 year old. He lives on through his family and those whose lives he touched — in both Canada and the United States, and especially from Inchelium, through Kettle Falls and Arrow Lakes, to Revelstoke: “Connecting.”
Virgil’s work carries on through the international effort to modernize the Columbia River Treaty based on the ethical principles of stewardship and justice.
Virgil Seymour: The passing of a true diplomat. Laura Stovel, The Revelstoke Current
Previously the Public Affairs Manager and Policy Analyst for the Northwest Indian Fisheries Commission for 26 years, Steve Robinson has had a career working closely with tribes on public relations and natural resources, and joined the CELP Board in June 2016. He has also worked in corporate public affairs, served as Chief of Public Information and Public Affairs Director for the Washington State Department of Natural Resources, Advertising Manager for a major real estate company in Portland, Oregon and worked several years as a daily newspaper reporter.
What’s your first memory of being aware of water conservation, or conservation in general?
I have always known how precious and rare fresh water is. I first became aware of the need to conserve it when I was a boy, fishing on the Calapooia River, which runs through my birth town of Albany, Oregon. Even then, the water in the river would run low in the summer, though it still contained enough to accommodate the activities of a young boy who couldn’t afford a fishing pole. But who needed one? There were plenty of long sticks nearby and all one had to do was tie some fishing line to its end, put a hook and some weight on the other end of the line and dangle it in the water. I became committed to working on conservation during the late ‘60’s and early ‘70’s, as a journalism student at the University of Oregon in Eugene. That was a time of civil unrest, and there was no shortage of boycotts and protests on the UO campus. The message of the masses was to end the war in Vietnam, but also to take better care of the environment. It was a time that gave birth to Earth Day and it was the first time I became active with the Native American Tribes—as a member of the UO Indian Student Union and as a reporter for the University’s daily newspaper. When I commenced my journalism career as a reporter for a daily newspaper in Eastern Oregon, my career of writing about natural resources and the environment continued, and my efforts to support the Tribes continued also as I served as public relations manager for the Indian Festival of Arts. Ultimately, I left the life of a newspaper reporter to get into public relations. I moved to Olympia to take a job as an information officer for the State Department of Natural Resources. I was eventually promoted to Public Affairs Director of that agency. I served on a large number of boards and commissions in my seven years with DNR, including a term as president of the Washington State Information Council. While at DNR I became integrally familiar with the U.S. v. Washington (Boldt) Decision, and produced an article for the New York Times on it. When the Commissioner of Public Lands I served under left office I did a five year stint in corporate public relations. I was also introduced to self-employment, starting a public relations company through which I employed a dozen people. However, after five years as a “corporatier” a job came to my attention that I couldn’t resist: Public Affairs Director for the Northwest Indian Fisheries Commission. Being a husband and father of two children by then, I wasn’t convinced that I really should move back to Olympia. But I decided to give it a shot. I met NWIFC Chairman Billy Frank, Jr. my first day on the job, and I was hooked. I worked for the Commission, serving the Treaty Indian Tribes in Western Washington for the next 26 years. I built a public relations program there, and over the years had golden opportunities to work with the Tribes here as well as indigenous governments and peoples across the country and beyond. My most memorable experience working for the Commission was, without a doubt, the opportunity to work with Billy. I was his “PR guy” and he became my life’s mentor. We worked and travelled together very extensively. I was the very fortunate fellow who got to be with him for thousands of hours, addressing environmental issues from the tribal perspective and standing up for treaty-protected rights near and far. My time with my spiritual brother Billy was the most entrancing and captivating time of my life. I learned so much from him that there are no words to describe it. After his passing on May 5, 2014, I have been dedicated to doing whatever I can to support the continuation and commemoration of his legacy. Among his many posthumous honors, the Nisqually Estuary has been named after him and he was a recent recipient of the Presidential Medal of Freedom—the greatest honor that can be bestowed on a citizen of this country. I now associate closer than ever with his son, Willie, who serves on the Nisqually Tribal Council, which is also a great experience for me. I left the Commission in September of 2010 to start my own public relations business, SR Productions of Olympia. My company is dedicated to serving tribes and to doing all I can to protect and restore the natural heritage of this country.
How did you first become aware of/involved with CELP?
As Public Affairs Manager and as a Policy Analyst for the Northwest Indian Fisheries Commission I have had the honor of working with CELP on a number of critical environmental issues and programs. I have always considered CELP to be a truly great organization, and I have always wholeheartedly supported its purpose and objectives. After I started my business, I also had the opportunity to serve as CELP’s lobbyist in Olympia, and to work with Rachael Pasqual in that capacity. We did extensive work together to support good water quality and quantity legislation and to modify or defeat bad bills. I look forward to serving on the CELP board.
What do you wish other people knew about CELP or water conservation generally?
I want everyone to know that CELP is a Class A organization dedicated to the protection and restoration of our very precious water resources. I want people to know that fresh water is a threatened resource, one that is far rarer than most realize, and that it is absolutely fundamental to all life. I not only want people to know that each and every one of us depends on clean, fresh water for their very survival, but also that they can help protect it through conservation, prevention of pollution, support for more effective infrastructure and good education.
What’s your personal philosophy on what should be done about water conservation?
I consider myself a naturalist. I also consider myself a pragmatist. That is not a contradiction. People need homes. They need food. They need wood and they need energy. But they also need a healthy ecosystem. If we continue to destroy the natural environment, nothing else will matter. To me that is not a so-called liberal or left wing philosophy; it is a very practical viewpoint. It is good stewardship—something I believe is everybody’s responsibility. Whenever there is a question about how to manage land, water or air I tend to believe the answer is provided to us by Mother Nature. She did just fine for thousands of years before Euro-Americans and other “newcomers” occupied (over-occupied) this country. Millions of indigenous people got along just fine also. It took just a few hundred years to change all that, and today we face water shortage and water pollution problems. We face extinction of many species, and we are facing climate change, ocean acidification and a host of other challenges. These are the result of poorly informed choices and the voracious appetite of greedy individuals and corporations. Too many people thought, and many still do, that natural resources are endless or that the scars they leave on the Earth are someone else’s problem, or that their property rights give them license to do as they please. They argue that such freedom is fundamental to a democratic society. I say that when the activities of these people and companies transgress against the rights of others to have a livable environment, property rights and the so-called right to block the natural flow of rivers, or pour poison into them, etc. is trumped.
What to do about water conservation? Conserve it! By all means available. That includes fair regulation, as well as the opportunity to conserve voluntarily. It means judicious use and the control of waste. It means storage in some incidences, rationing when necessary and education, education, education. I am a strong believer in the power of education. We need to constantly improve environmental education, in schools and in public. People need to learn why they should care and how it affects them. No matter what there will be detractors. But I believe most people, once educated, want to do the right thing. My experience as of late is that most people want to change their approach to water management, in a way that preserves the resource for fish and wildlife. We should support that changing attitude, in a very public way.
Recent studies indicate that voluntarism in environmental protection and natural resource management has not been effective, which might lead some to abandon the approach. Not me. I believe every avenue must be taken to achieve water conservation. In many ways voluntarism is integral to success. Working with Billy Frank, Jr., I learned long ago that “getting people to the table” to seek agreement on such issues can be very effective. I also learned that such collaborative approaches are most effective when the stakeholders realize it is far more to their benefit to cooperate than not. The symbolism we often used to make progress was to hold one hand out, ready to shake others’ hands in a very cooperative manner while hovering a club over their heads in the other hand. In other words, keep the option open for them to “do the right thing” but be ready, willing and able to force the issue when necessary.
When examining my philosophy about water conservation, it is important to understand that I am tribal, both in spirit and heritage, and that I subscribe to all the elements of the Tribal Water Principles (attached). Essentially, this document was developed collaboratively among all the Treaty Indian Tribes in Western Washington in the 1990’s to express their common positions on water management and water rights. I was honored to be included in the discussions that led to this document, which points out that the treaty tribes do inherently and legally retain the right to have sufficient water in streams and rivers to sustain the fisheries resource. In effect, the protection of instream flows is protected by treaties and are thus “the law of the land,” as described in the U.S. Constitution. As stated in principle 5: “Adequate quantity and quality of water is necessary to protect the culture of the tribes, including but not limited to spiritual needs, fishing, hunting, and gathering rights and practices.” The principles also address the fact that treaties protect a reserved tribal right to surface and groundwater sufficient to fulfill the purposes of the reservations as permanent, economically viable homelands, and that this right exists with a priority date no more recent than the date the reservation was established.
Why do you support CELP?
I have always found CELP to be highly supportive of tribal treaty rights, as well as courageous in its efforts to effect change in water management. These qualities equate to high environmental values and good stewardship.
What would you tell someone who is thinking about becoming involved with CELP?
In my writings and in the work I’ve done with Billy Frank, Jr., and with the Tribes in the Northwest and beyond, I have often encouraged people to take action in ways that help improve water management and other critically important environmental efforts. In describing ways to get involved I have suggested joining organizations such as CELP. It is a very good way to provide a collective voice in such efforts. There is strength in numbers, especially when the strength is channeled in the progressive ways CELP has sponsored and endorsed. CELP, of course, stands for the Center for Environmental Law and Policy. I think it could also stand for Centering the Energies of Lots of People. CELP has been a leader in the effort to promote water conservation for a long time, and it is an organization which has excelled in helping many people focus their energies in that effort.
What do you do when you aren’t volunteering for CELP?
As owner of SR Productions of Olympia I serve the communication interests of my tribal clients however they direct me to do so. Those efforts take the form of writing and distributing news releases, working with the news media, producing videos and publications ranging from brochures to curricula. I write columns, coordinate events, provide communications-related training and provide intergovernmental coordination and lobbying in the State Legislature and Congress as well as other governments and entities. In my “spare time” I hang out with my family, watch sports, go to the gym, spend time in the outdoors, do some travelling and write everything from poetry to novels.
Summer is coming! This month’s issue of Water Watch features information on our upcoming Celebrate Water event, an article on our letter to Governor Inslee about restoring higher flow requirements on the Spokane River, a “Love Letter to a River” by CELP member Pat Sumption, and an introduction to CELP’s newest board member, Jill F. Johnson.
by Pat Sumption
I really didn’t discover rivers until I went to Girl Scout camp at 12. We did a multi-day hike on the Dosewallips. We swam in the river and nearly froze our toes, and it was beautiful and I was in love with the Dosewallips and rivers everywhere. So it was inevitable when someone aimed me at a river canoe, that I would get in it and try paddling. And, I guess it was inevitable when I was told to choose my favorite Washington river at a State Rivers Conference in the 1980’s I would choose the Green. It is the color of my eyes, after all, and I had to choose something.