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Appeals Court: clean up Spokane River PCB pollution

News Release – August 17, 2016

Dept of Ecology must redo permit for Spokane County’s Wastewater Treatment Facility consistent with water quality laws

Contacts:

  • Rachael Paschal Osborn (Sierra Club) 509.954-5641 rdpaschal@earthlink.net
  • Dan Von Seggern (Center for Environmental Law & Policy) 206.829-8299 dvonseggern@celp.org

Spokane – On August 16, the Washington State Court of Appeals issued the third legal decision in favor of Spokane River advocates seeking to stop more PCBs from being added to the Spokane River from the Spokane County’s wastewater treatment facility. Three courts have now ruled that the Department of Ecology (“Ecology”) failed to do what the law requires: analyze whether the County’s discharge of PCBs has potential to violate state water quality standards, and if so, then impose appropriate limits to prevent such violations. The Appeals Court left intact an earlier ruling that the Spokane River Toxics Task Force is not an adequate or legal substitute for pollution control limits.

Sierra Club and the Center for Environmental Law & Policy (CELP) filed the lawsuit against Ecology in 2011, and praised the Court’s ruling. “The Court decision is another important step to clean up PCBs polluting the Spokane River,” said Rachael Paschal Osborn, with Sierra Club and CELP.

In rejecting the appeal by Ecology and Spokane County, the Appeals Court stands with earlier decisions that, because the 2011 permit lacks any limit on PCB discharges, it violates the Clean Water Act, and that other terms of the permit are vague and unenforceable. The Board remanded the permit back to Ecology to do over.

The Spokane River is among Washington State’s most contaminated river for PCBs. Exposure to PCBs through ingestion of Spokane River fish represents a public health hazard.  In 2008, the Washington State Department of Health issued fish consumption advisories, recommending limited or no consumption of fish from Lake Roosevelt and the Spokane River.

In 2011, Sierra Club’s Upper Columbia River Group and CELP filed this suit and a companion lawsuit in federal court to compel Washington State and the U.S. Environmental Protection Agency to uphold water quality laws for the Spokane River. The Spokane Tribe intervened in support of the federal lawsuit. In that case, a Seattle federal judge ruled that EPA was wrong not to require the Washington State to prepare a clean-up plan for Spokane River PCBs.

“The Clean Water Act requires the Department of Ecology to protect our public waters by evaluating a new facility’s potential for pollution and placing appropriate limits on discharges,” said Dan Von Seggern, staff attorney with the Center for Environmental Law & Policy. “Here, the court affirmed that Ecology must evaluate and limit PCB discharges from Spokane County’s wastewater treatment facility. This ruling is an important step in reducing PCB pollution in the Spokane River.”

Sierra Club and CELP are represented by attorney Richard Smith of Smith & Lowney PLLC.

Links:

More on the 2013 ruling upheld by state courts

The state’s pollution court, the Pollution Control Hearings Board (PCHB) ruled that the Toxics Management Program in Ecology’s 2011 permit “is “confusing, vague, and lacks definition of key terms. More importantly, it lacks deadlines by which Spokane County is to undertake and/or complete actions to reduce PCBs in influent to the facility. It lacks mandatory language requiring Spokane County to actually undertake necessary actions to achieve reductions in PCBs in both influent and effluent. . . . [R]ather than requiring Spokane County to meet water quality standards, the [Toxics Management Program] only asks that the County take steps so that ‘in time the effluent does not contribute to PCBs in the Spokane River exceeding applicable water quality standards.’ . . . The Permit must require Spokane County to comply with water quality standards . . . .”” (Paragraph 13, p 23-24) This requirement will need to include compliance with the Spokane Tribe’s downstream water quality standards that were adopted by the Tribe and approved by the U.S. Environmental Protection Agency in 2003.

Additionally, the Board ruled that the Regional Toxics Task Force fails “to require that “goals be achieved by a specified date. Nor does [this permit condition] establish an objective standard against which its accomplishments can be measured . . . . [The Toxics Task Force permit condition] does not impose any restrictions on quantities, rates, and concentrations of PCBs being discharged from point sources into the Spokane River. While the Board finds that the creation of the Task Force is a positive step toward bring the Spokane River into compliance with water quality standards for PCBs, it is uncertain that the Task Force will achieve any of its stated goals or achieve a measurable reduction in the discharge of PCBs. . . . Ecology is directed on remand to modify the [Toxics Task Force permit condition] to make clear that compliance with the Permit’s requirements take precedence over the work of the Task Force.”” (Paragraph 17, pp 26-27)

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Hot temperatures prompt calls to conserve water to help struggling Spokane River

kids news conference JO photo 8-5-2015Spokane River nears 1,000cfs; H2KNOW project launches public education effort

July 28, 2016

Contacts:

  • Tom Soeldner (Upper Columbia River Group, Sierra Club) waltsoe@gmail.com 509.270-6995
  • John Roskelley (Center for Environmental Law & Policy) john@johnroskelley.com (509) 954-5653
  • Paul Delaney (Northwest Whitewater Association spokanerafterguy@comcast.net, (509) 220-8018
  • Jerry White (Spokane Riverkeeper) jerry@cforjustice.org (509) 475-1228

Spokane – Today the H2KNOW campaign reminded the households and businesses in the Inland Northwest to conserve water to help the Spokane River. As daily temperatures rise, people and businesses are using more water, and Spokane River flows are dropping.

“Every time people turn on a faucet to water yards, or the City waters its golf courses, we harm the Spokane River,” said Tom Soeldner with the H2KNOW campaign and a retired Lutheran pastor. “Our message is: use water wisely, and know that you can help the Spokane River by conserving water.”

People can take five actions that will conserve water and help the Spokane River:

  1. Reduce outdoor watering (especially stop over-watering grass)
  2. Replace lawn with low-water plants
  3. Fix broken or clogged pipes and sprinkler heads
  4. Fix leaks in all plumbing fixtures
  5. Install water-efficient devices (such as low flow toilets and shower heads)

The Inland Northwest is notable for its hot, dry summers. Water used by 600,000 people in the Spokane-Coeur d’Alene region comes from the Spokane-Rathdrum Aquifer, which also supplies the Spokane River. Water that would otherwise flow from the aquifer to the Spokane River is intercepted for human use contributing to low river flows. Low flows harm fish, wildlife, recreation opportunities, and businesses that benefit from the river. Large municipal wells that are close to the River, such as the City of Spokane’s Well Electric facility, can have an immediate depleting impact on river flows.

Spokane River flows are monitored at the USGS Monroe Street Gage, a measuring device located just downstream of the Monroe Street bridge. Interested parties can watch flow trends on the web or in the local newspaper.

H2KNOW organizers note that, while the region is not yet suffering a repeat of last summer’s sustained high temperatures and lack of rainfall that caused high water consumption, high temperatures are in the forecast and will prompt increased water use, resulting in a decrease to Spokane River flows.

The H2KNOW campaign is a community-based water conservation project hosted by the Center for Environmental Law & Policy and Sierra Club.

Links –


Cleaning up Spokane River PCB pollution

News Release – June 6, 2016

EPA challenged over failures to clean up Spokane River PCB pollution

Contact –

Last week in U.S. District Court, Spokane River advocates challenged as inadequate an Environmental Protection Agency (EPA) proposal to remove the industrial pollutants known as PCBs from the Spokane River. They hope for a ruling that will end decades of foot-dragging and produce a reasonable, expeditious cleanup plan for the river.

“We are looking forward to showing Judge Barbara Rothstein how the EPA’s plan for PCBs in the Spokane River would frustrate and counter the letter and intent of the Clean Water Act,” said Richard Smith, Clean Water Act attorney representing Sierra Club and the Center for Environmental Law & Policy (CELP). “EPA’s excuses for not calling for a cleanup plan on a reasonable and expeditious timeline are just that – excuses, and we think the judge will see that.”

The federal Clean Water Act, passed in 1972, requires that polluted waters be cleaned up so that they are fishable and swimmable. Forty-four years later, the Spokane River still does not have a cleanup plan for PCBs.

On April 5 the federal Ninth Circuit Court of Appeals dismissed the appeal filed by Spokane County, Kaiser Aluminum Washington, LLC, and the State of Washington Department of Ecology (State Ecology). The Ninth Circuit decision lets stand the U.S. District Court’s ruling that the EPA cannot substitute the Spokane River Regional Toxics Task Force, a polluter-dominated committee process, for a cleanup plan with enforceable targets for Spokane River PCBs.

This case is important because the heavily used Spokane River flows through the second-most populated area in Washington State and is contaminated with PCBs, is an example of the failure of state and federal agencies to fulfill trust duties to protect the state’s waters, and involves the first-ever water quality standards based on fish consumption by humans in Washington State (adopted by the Spokane Tribe of Indians).

“River polluters control the Toxics Task Force that is using a ‘consensus process’ to write a plan to dodge the clean water law,” said Rachael Paschal Osborn of Sierra Club and CELP. “Does anyone seriously believe the polluters will impose expensive treatment requirements on themselves? This is why EPA must step in and prepare a plan with binding cleanup targets that actually protects the Spokane River.”

More about PCBs, and the legal case to clean up the Spokane River

The Spokane River is heavily polluted with PCBs. The federal Clean Water Act, passed in 1972, requires that polluted waters be cleaned up so that they are fishable and swimmable. Forty-four years later, in 2016, the Spokane River still does not have the cleanup plan for PCBs required by the Clean Water Act.

PCBs are a group of industrial compounds associated with liver dysfunction and cancer, and are now banned in the United States.  Washington State formally recognizes that the Spokane River is impaired for PCBs.  When a river is listed for PCBs, the federal Clean Water Act requires binding cleanup targets before issuing any permits that would add more PCBs to the Spokane River.  Such a cleanup plan has never been completed for the Spokane River, but state and federal agencies have issued pollution permits anyway, failing to include numeric limits. Ecology is due to renew those permits this year, but the agency is not expected to include numeric limits for toxics.

In 2011, the Washington Department of Ecology 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.

Subsequently EPA issued discharge permits to three Idaho dischargers – the City of Coeur d’Alene, Post Falls and Hayden Water & Sewer District – also not requiring PCB limits and also requiring participation in the Toxics Task Force.

Sierra Club & CELP filed a citizen lawsuit against EPA in 2011. The Spokane Tribe of Indians intervened in support of the citizen lawsuit, and the Department of Ecology, Spokane County and Kaiser intervened to defend EPA. U.S. District Court Judge Barbara Rothstein ruled in March 2015 that EPA’s failure to require a clean-up plan was an abuse of discretion and ordered EPA to submit a plan to the Court by July 2015.

EPA, Ecology, Kaiser, and Spokane County appealed the ruling, but EPA withdrew its appeal and submitted a document (which fails to require a cleanup plan) to the District Court. On April 5, the Ninth Circuit Court of Appeals dismissed the Ecology-County-Kaiser appeal in a one-paragraph decision. This means that a CELP-Sierra Club challenge to the EPA’s “non-cleanup plan” document will now move forward in District Court.

Last week, Spokane River advocates filed their objection with the federal judge, challenging EPA’s proposal. Meanwhile, Ecology is preparing to issue updated pollution permits to river dischargers in Washington State. The City of Spokane sued Monsanto Corporation because of the river’s PCB pollution.

Sierra Club and CELP are represented by Richard Smith and Marc Zemel of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation.  The Spokane Tribe of Indians is represented by Ted Knight.

Links –

 

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Prof. Bill Rodgers and Rep. Derek Stanford to be honored

News Release – Event on June 8

National leader in environmental law, UW’s Bill Rodgers, and Rep. Derek Stanford to be honored for water protection

 

UW Law Professor honored for lifetime’s work as legal scholar, willingness to challenge polluters, protect environment and Indians’ fishing rights

 

Rep. Stanford honored for leadership in Legislature to protect public’s waters in Washington State

 

Contact –

  • Trish Rolfe, Center for Environmental Law & Policy, trolfe@celp.org, 206.829-8299
Rep. Derek Stanford who has provided leadership to protect the public's waters in Washington State.

Rep. Derek Stanford – whose leadership has been essential to protecting the public’s waters in Washington State.

Prof. Bill Rodgers - a giant in environmental law scholarship and attorney for the environment and Indian rights.

Prof. Bill Rodgers – a giant in environmental law scholarship and attorney for the environment and Indian rights.

Seattle – On June 8th in Seattle, a national legal scholar and a state legislative leader, will be honored: UW law professor William “Bill” Rodgers and Rep. Derek Stanford.

“We need to pause and take the time to thank and honor our heroes,” said Trish Rolfe, director of the Center for Environmental Law & Policy. “In this time of climate change, increasing pressure on our rivers and drinking-water aquifers, and rush to exploit the public’s waters, Professor Rodgers and Rep. Stanford deserve thanks and recognition for their public service.”

Professor Rodgers will receive the Ralph Johnson Water Hero Award. Rep. Stanford will receive the Washington Water Policy Award. The awards are presented by the State of Washington’s water watchdog, the Center for Environmental Law & Policy.

The Water Hero Award is given in honor of CELP’s founder, Professor Ralph W. Johnson, a law professor at University of Washington Law School who established the legal discipline of Indian Law and advanced legal understandings of protections for public waters. Past recipients of the award include Billy Frank Jr., (a close friend of Prof. Johnson) on behalf of the Northwest Indian Fisheries Commission; Swinomish Indian Tribal Community; and Upper Columbia United Tribes (recognizing all Tribes and First Nations working to modernize the Columbia River Treaty).

The Washington Water Policy Award, given for the first time, goes to an elected official or policy maker that shows outstanding contributions to sustainable water policy in Washington. The first to receive this award is Rep. Stanford for his work during the last two years in the House Agriculture and Natural Resources Committee and as vice chair for the Joint Committee, Water Supply During Drought, to help direct state water policy to a more sustainable path.

Honoring Event details

  • Event: Celebrate Water! hosted by the Center for Environmental Law & Policy – Washington’s water watchdog
  • When: June 8 (Wednesday) 5:30 – 7:30.

Note: if you are interested in the Columbia River BiOp decision, a pre-reception “CLE” will be held at 4:00 same venue on that recent decision.   Presenter: Steve Mashuda, Earthjustice

  • Where: Ivar’s Salmon House 401 NE Northlake Way, Seattle
  • Tickets: can be purchased on-line or at the door. Reception – $50; CLE – $30; both – $70

More about Professor Bill Rodgers

  • Eye-witness and participant in writing nation’s environmental laws that ushered in the “environmental revolution” starting the late 1960s, 1970s;
  • lawyer and witness in the “smelter cases,” including ASARCO’s smelter in Tacoma and the arsenic pollution of Tacoma and Puget Sound;
  • lawyer for Indian activists, including after the takeover of the BIA office in Washington,D.C.;
  • worked with attorneys, among them UW law professor Ralph W. Johnson, to protect Indian fishing rights (the Boldt decision), representing the Puyallup Tribe’s treaty rights to salmon; and
  • author of major treatises on environmental law, an academic who has also worked to hold judges, including the U.S. Supreme Court, accountable for their decisions.

Prof. Rodgers is available for interviews.  On a personal note, Bill Rodgers’ daughter, Andrea Rodgers, is a leading environmental attorney representing children challenging the State of Washington to address climate change. (more)

Links –

 

 


Governor Inslee: Spokane River needs you!

News Release
Tuesday, May 31

Contacts –

Gov. Inslee has 45 days to decide whether to protect Spokane River flows

Citizens ask Gov. to reopen agency decision that ignored jobs, tourism, boaters, scenery

 

Spokane – Advocates for the Spokane River are asking Gov. Jay Inslee to grant their petition for protecting all instream values of the Spokane River, including recreational boating opportunities. This is the next step in the citizens’ quest to protect Spokane River flows. A petition was filed in February with the Washington Department of Ecology (Ecology), and rejected by the agency in April.

The groups are asking Gov. Inslee to protect jobs, the Spokane River, uphold the law, and avoid embroiling the state in more litigation regarding the Spokane River. Citizens’ letter to the Governor reads, in part:

We would like to make it clear that our goal in bringing this appeal to you is to reach an amicable agreement with Ecology to amend the Spokane River Instream Flow rule in a manner that takes into account and protects aesthetic and recreational values, while also protecting fish habitat. While we are simultaneously appealing Ecology’s decision to Thurston County Superior Court, we are required to do so to preserve our appeal rights pursuant to the Washington Administrative Procedure Act. Our hope is that you will be willing to resolve the issues raised in our appeal without the need for protracted litigation. We are asking that you direct the Department of Ecology to re-open the Spokane River Instream Flow Rule and reassess the minimum summer flows that are needed to protect and preserve recreational and aesthetic uses of the river. Because the Petitioners and Ecology agree that higher flows than those protected in the existing rule will not harm the fish, we believe that a mutually agreeable resolution is possible that is best for the Spokane River.

The Spokane River is a beloved urban river that flows through the second-largest city in Washington State, including spectacular waterfalls and a deep gorge. Conservationists seek a minimum summertime flow of 1,800 – 2,800 cubic feet per second (cfs) to support fisheries and recreation, and protect higher flows for recreation when available. Ecology set river flows at 850 cfs, far below typical summer low flows. This rule could effectively make every year a drought year for the Spokane River.

Nearly 2,000 comments, including boater surveys and scenic photographs, were submitted to Ecology during the public comment period on the draft rule. The state agency ignored overwhelming public support for protecting Spokane River flows and adopted low river flows that jeopardize the Spokane River and public uses.

The case has statewide significance because Ecology excluded recreation and outdoor recreation-based jobs from its analysis in setting river flows. Annual economic contributions of outdoor recreation to Washington’s economy are about $20.5 billion, supporting nearly 200,000 jobs. Washington’s natural resources should be managed to support outdoor recreation.

The governor has 45 days to respond to the citizens’ petition. Petitioners are Sierra Club, CELP, and American Whitewater, and are represented by attorneys Andrea Rodgers (Western Environmental Law Center) and Dan Von Seggern (Center for Environmental Law & Policy).

Links –

Quotes –

“We are asking Gov. Inslee for leadership to protect jobs and the people’s river,” said John Roskelley, kayaker, author, and vice president of the Center for Environmental Law & Policy. “Last summer the whole community lived through drought and witnessed the Spokane River reduced to a trickle amid boulder fields. The state has a trust responsibility for our river, and an obligation to protect the state’s outdoor recreation economy.”

“Our city owes its origins, its beauty, and a great deal of its past and present life to the Spokane River,” said Tom Soeldner, co-chair of Sierra Club’s Upper Columbia River Group based in Spokane. “It would be a betrayal of the river and our identity if we did not maintain healthy and aesthetic river flows that also support outdoor recreation and jobs.”

“Excluding rafters, kayakers, and canoeists in setting flows sets a dangerous precedent for Washington State’s rivers,” said Thomas O’Keefe, Pacific Northwest stewardship director for American Whitewater “Our state’s river face many demands but ultimately we have a collective responsibility for the stewardship and protection of our state’s rivers, and Department of Ecology must protect the diversity of beneficial uses our rivers provide including recreation.”

“Gov. Inslee has expressed his commitment to encouraging outdoor recreation in the state of Washington and this petition to amend the Spokane River Instream Flow Rule gives him the opportunity to do just that,” said Andrea Rodgers of the Western Environmental Law Center. “We are asking the governor to ensure that recreational uses of the river are not only considered, but protected, as is required by law. The ball is in Gov. Inslee’s court to do what is right for the river so future generations of Washingtonians can recreate on the river for years to come.”

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Court to hear Arguments on the Legality of Water Rights to Operate Enloe Dam

 Center for Environmental Law & Policy
American Whitewater * North Cascades Conservation Council

News Advisory – April 19, 2016
Contacts:

When: Wednesday, April 20 at 9:30 a.m.

Where: Seattle – Washington State Court of Appeals, District 1; One Union Square, 600 University St.

What: Oral argument in a challenge to the Washington State Department of Ecology for issuing water rights that would nearly completely dewater a segment of the Similkameen River while burdening ratepayers with substantial costs.

Plaintiffs: Center for Environmental Law & Policy, American Whitewater, and North Cascades Conservation Council – members of the Hydropower Reform Coalition.

Defendants: Washington State Department of Ecology, Public Utility District No. 1 of Okanogan County, Washington, and Washington State Pollution Control Hearings Board

 

Enloe Dam is a cement plug blocking the free-flowing Similkameen River in north central Washington State and British Columbia. The dam has not generated power since the 1950s, with prior efforts to re-energize the dam being rejected by regulators. The local Public Utility District, Okanogan PUD, once again proposes to electrify the old Enloe Dam, almost completely dewatering an important stretch of the river including Similkameen Falls in violation of Washington water law.

Economic studies, including one by the Okanogan PUD itself, conclude that the project would result in substantial financial losses. The economic risks increase when one considers the fact that the water rights to operate the project violate a forty-year-old regulation that protects instream flows for people and fish. If Okanogan PUD were to move forward, then they could spend millions of ratepayer dollars to build a project without water to operate it. Ratepayers in the Oroville area have vigorously opposed the PUD proposal for financial and other reasons.

Despite the fact that a legally required study to assess the impacts of the Project on aesthetic and recreational resources has not been completed, the Washington State Department of Ecology (Ecology) issued a water right to the PUD to divert water from the Similkameen River. River advocates challenged the State’s decision to exploit the public’s waters for an economic loser of a project. On Wednesday, Division 1 of the Court of Appeals will hear oral arguments in the case. The attorney for the river advocates is Andrea Rodgers of the Western Environmental Law Center.

Quotes

On the PCHB (the Pollution Control Hearings Board or “Board”) correctly requiring an aesthetic analysis of dewatering a river — and then incorrectly approving water rights that would dewater the river:

“Ecology granted a water right for this project at the expense of bedrock principles of Washington water law,” said Andrea Rodgers the Western Environmental Law Center attorney representing the coalition groups. “In particular, the board ruled that it was not necessary to gather information about the aesthetic and recreational impacts of the project until after the hydro project is built. Ecology has put the cart before the horse and in doing so broke laws that protect our state’s precious water resources.”

On the importance of the Similkameen River to the people of Washington State:

“The Similkameen River is a valuable resource to the community for recreation, scenic values, and fish and wildlife. As with other rivers across the state, recognition of the importance of flows for aesthetic and recreational purposes is important to our organization. We will continue to press legal issues that protect the Similkameen River and Falls as multi-use public resource given the significance of this decision for rivers statewide,” said Thomas O’Keefe, Pacific Northwest Stewardship Director with American Whitewater.

On the statewide significance of this case:

“The water permitting process is designed to make sure that the public’s waters are allocated wisely and protected from over-exploitation. In this case, the Department of Ecology issued a permit that would remove nearly all water from this stretch of the river without ensuring that aesthetic and recreational values would be protected. The Enloe Dam appeal sends a message of statewide significance that the Department of Ecology must promote balanced use of Washington’s waterways,” said Dan Von Seggern with the Center for Environmental Law & Policy.

Links –

Economic Analysis

Appeal Court Brief

Conservationists’ Petition for Review

 


U.S. Senate: Muzzling Public Education on Water Pollution?

News Release

Immediate release: April 13

Midwestern Republican Senators working to muzzle Water Pollution education project in Washington State

“What’s Upstream?”  focusing on struggling rivers, salmon

Contacts:

  • Trish Rolfe Center for Environmental Law & Policy 206-829-8299 trolfe@celp.org
  • Jean Melious Center for Environmental Law & Policy jnmls1@gmail.com
  • John Osborn MD (Columbia River Future Project, Sierra Club) 509.939-1290 john@waterplanet.ws

Today, the Center for Environmental Law & Policy and the Columbia River Future Project of Sierra Club criticized two U.S. Senators, Pat Roberts (R-Kansas) and Jim Inhofe (R-Oklahoma) for pressuring the U.S. Environmental Protection Agency to kill funding for a public education effort to protect clean water and rivers. While many rivers in Washington State are damaged by agricultural practices, representative of the controversy is the Nooksack River flowing to Puget Sound.

“It is simply a fact that fecal coliform pollution in the Nooksack River violates state water quality standards,” said CELP board member Jean Melious, an attorney and professor of Environmental Studies at Western Washington University. “We have to be able to talk about unregulated industrial agricultural practices on Puget Sounds’ rivers if we are going to fix these problems and help restore Puget Sound.”

The Nooksack River is located in southern B.C. and northwestern Washington, and flows into the Salish Sea (Puget Sound).   Pollution from agricultural operations, as well as illegal water withdrawals in the U.S. have severely damaged the Nooksack River threatening salmon runs while contaminating and contributing to the closure of shellfish beds. A recently released report documents the damaging impacts on Puget Sound from industrial agricultural practices.

In response to water pollution from agricultural practices, conservation groups and tribes undertook a public education effort called What’s Upstream? with funding from EPA. The Washington State Dairy Federation, among other agriculture lobby groups, attacked EPA. Those attacks now are underway in the U.S. Senate, led by Sen. Roberts and Sen. Inhofe.

On April 4, U.S. Senate Agriculture Committee Chairman Roberts issued a statement criticizing the clean water education effort. Both Roberts and Inhofe have written the inspector general of the EPA asking for an investigation.

“Our rivers are in distress,” said Trish Rolfe, director of the Center for Environmental Law & Policy.   “We are disappointed and troubled that two Senators from the Midwest would try to stop efforts to educate Washington state residents about water pollution from industrial agriculture and the simple steps that agriculture could take that would dramatically improve water quality in our rivers.”

“The public needs to know we can have both clean, healthy rivers and responsible agricultural practices,” said John Osborn, a Spokane physician who directs Sierra Club’s Columbia River Future Project. “We cannot achieve both clean water and food production if industrial agriculture dodges regulation.”

What’s Upstream? Is a project of the Center for Environmental Law & Policy, Puget Soundkeeper Alliance, the Swinomish Tribal Indian Community, and the Western Environmental Law Center.   The goal of “What’s Upstream?” is to inform the public about leading causes of water pollution and how that pollution affects the health of Washington’s waterways, people and fish.   The project has been funded wholly or in part by EPA.

Links:

 

 


Spokane River PCB Cleanup is Not Adequate

News Release  –  April 6, 2016

Spokane River PCB Cleanup is Not Adequate:

Federal Appeals Court Dismisses State-County Appeal

Spokane County, Kaiser, and Department of Ecology had challenged decision to protect Spokane River

Contact –

  • Rachael Paschal Osborn (Sierra Club, Center for Environmental Law & Policy)  509.954-5641  rdpaschal@earthlink.net
  • Richard Smith (Smith & Lowney, PLLC)       206.860-2124 rasmithwa@igc.org
  • Dan Von Seggern (Center for Environmental Law & Policy) 206.829-8299       dvonseggern@celp.org
  • Ted Knight (Spokane Tribe of Indians)  509.953-1908  ted@tcklaw.com

Spokane:   Advocates for the Spokane River hailed an April 5 decision by the federal Ninth Circuit Court of Appeals dismissing the appeal filed by Spokane County, Kaiser Aluminum Washington, LLC, and the State of Washington Department of Ecology (State Ecology). The Ninth Circuit decision lets stand the U.S. District Court’s ruling that the U.S. Environmental Protection Agency (EPA) cannot substitute the Spokane River Regional Toxics Task Force, a polluter-dominated committee process, for a cleanup plan for Spokane River PCBs.

“The sewage and industrial treatment plants such as City of Spokane and Inland Empire Paper are moving forward with pollution control projects, but absent a clean-up plan, there is no target against which to measure success. After spending hundreds of millions of taxpayer dollars, these plans may not measure up,” said Rachael Paschal Osborn of CELP and Sierra Club.

The Spokane River is heavily polluted with PCBs and other toxic chemicals. Despite years of analysis, Ecology and EPA have failed to prepare a clean-up plan for the River. State and EPA-issued pollution discharge permits for municipal and industrial treatment plants in Washington and Idaho do not contain numeric standards limiting the release of toxins into the Spokane River.   The Washington Department of Ecology is due to renew those permits this year, but the agency is not expected to include numeric limits for toxics.

In 2011, the Washington Department of Ecology 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. Subsequently EPA issued discharge permits to three Idaho dischargers – the City of Coeur d’Alene, Post Falls and Hayden Water & Sewer District – also not requiring PCB limits and also requiring participation in the Toxics Task Force.

Sierra Club & CELP filed a citizen lawsuit against EPA in 2011. The Spokane Tribe of Indians intervened in support of the citizen lawsuit, and the Department of Ecology, Spokane County and Kaiser intervened to defend EPA. U.S. District Court Judge Barbara Rothstein ruled in March 2015 that EPA’s failure to require a clean-up plan was an abuse of discretion and ordered EPA to submit a plan to the Court by July 2015. EPA, Ecology, Kaiser, and Spokane County appealed the ruling, but EPA withdrew its appeal and submitted a document (which fails to require a cleanup plan) to the District Court. On April 5, the Ninth Circuit Court of Appeals dismissed the Ecology-County-Kaiser appeal in a one-paragraph decision. This means that a CELP-Sierra Club challenge to the EPA’s “non-cleanup plan” document will now move forward in District Court.

“Spokane River fish continue to be heavily contaminated with PCBs,” said Rachael Osborn, senior policy adviser for the Center for Environmental Law & Policy 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 the 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 MARCH 2015 U.S. DISTRICT COURT DECISION:

Judge Rothstein’s March 2015 decision found that the Task Force is not a proper substitute for a Clean Water Act-mandated limit on PCBs (Total Maximum Daily Load, or “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.

Judge Rothstein also ordered 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.

MORE 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 formally 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.

When a river is listed for PCBs, the federal Clean Water Act requires a cleanup plan (a TMDL) before issuing any permits that would add more PCBs to the Spokane River.  The Washington Department of Ecology is attempting to sidestep the law by not preparing a PCB cleanup plan, and issuing NPDES permits anyway.

Sierra Club and CELP are represented by Richard Smith and Marc Zemel of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation.  The Spokane Tribe of Indians is represented by Ted Knight.

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Boise Conference on Ethics, Hells Canyon Dams, and the Columbia River Treaty – March 14, 2016

News Advisory

Contacts:

Conference:

  • When: March 14, 8:30am-4:00pm
  • Where: Boise State University, Student Union Building
  • Cost: Free and open to the public
  • RSVP:  www.celp.org/ethics-boise/
  • RSVP Deadline: March 10

Religious and tribal leaders from the Snake River and Columbia Basins will lead a one-day conference on ethics and the future of the Columbia and Snake Rivers. The conference is spurred by two events: re-negotiation of the U.S.-Canada Columbia River Treaty, and re-licensing of Idaho Power Company’s Hells Canyon Complex of dams.

Many are unaware of the Snake River and Columbia River dams’ negative effects to native people, and the exclusion of native people from the decisions to build them. Speakers will explore ethical frameworks for these decisions that embrace indigenous people, salmon and the waters of both rivers. Native people impacted directly by dam-building will describe past and present effects on their people and cultures, and native and religious leaders will describe opportunities to modernize river management that promote justice for all people and the health of the river.

This is the third in a conference series titled “One River, Ethics Matter,” to explore the moral dimensions of the dam-building era, with a focus on Indian tribes and First Nations, and the rivers themselves. The Columbia River Pastoral Letter, issued by Northwest Catholic bishops in 2001, provides a foundation and framework for the conference series. This series is modeled on South Africa’s Truth and Reconciliation public dialogue in the wake of apartheid. This Boise conference follows two in Spokane and Portland.

Speakers include: Charlotte Rodrique, chair of the Burns-Paiute Tribe; Pauline Terbasket, director of the Okanagan Nation Alliance in British Columbia; Bishop Martin Wells, Eastern Washington-Idaho Lutheran Synod; Ted Howard, cultural resources director of the Shoshone-Paiute Tribes; Leotis McCormack, Nez Perce Tribal Executive Committee; and Rabbi Daniel Fink of Congregation Ahavath Beth Israel in Boise.

Earlier conferences in Spokane and Portland explored the profound effects of dams from Grand Coulee upstream on tribes and First Nations, and how protecting flood plain settlement and development in the Portland area has come at the cost of permanently flooding river valleys and native homelands upstream. The Boise conference will examine companion issues in the Snake River as well as the Columbia.


Hosted by
Departments of Anthropology and Political Science & School of Public Service
Boise State University

Spokane River advocates petition state to increase summertime water flow

Water is needed for river health, fish, recreational boaters, and scenic beauty

March 1, 2016

Spokane – On Monday, advocates for the Spokane River petitioned the Washington Department of Ecology (“Ecology”) to increase its flow rule for the popular and heavily-used Spokane River.  The Spokane River is a much beloved urban river that flows through the second largest city in Washington State, including spectacular waterfalls and a deep gorge. Conservationists are seeking a minimum summertime flow of 1,800 – 2800 cubic feet per second (CFS) to support fisheries and recreation, and protect higher flows for recreation when available.

“We are asking Washington state to ‘go with the flow,’ amend its inadequate flow rule, and protect the people’s river,” said John Roskelley, kayaker, author, and vice president of the Center for Environmental Law & Policy. “Last summer the whole community lived through drought and witnessed the Spokane River reduced to a trickle amid boulder fields. The state has a trust responsibility for our river, and must do its job.”

Nearly 2,000 comments, including boater surveys and aesthetic inventories, were submitted to the Department of Ecology during the public-comment period on the draft rule. The state agency ignored all public comments in support of protecting the Spokane River, and adopted unchanged its flow rule of 850 CFS – river flows that are low and jeopardize the Spokane River and public uses.

Petitioners have retained Dr. Doug Whittaker and Dr. Bo Shelby, who are experts in recreation and aesthetic flows from Confluence Research and Consulting, to evaluate appropriate flows. Drs. Shelby and Whittaker participated in establishing aesthetic flows for Spokane Falls, and are the foremost national experts on flows. They conclude that the Department of Ecology’s adopted flows are inadequate to support most types of recreational boating on the river. Higher flows in the Spokane River, when available, should be protected. Read their full report here.

“Spokane River fisheries need cold, abundant water,” said Roskelley. “The Department of Ecology erred in concluding that more water is bad for fish, thereby justifying its decision not to protect Spokane River flows.” In response, petitioners submitted a report prepared by Prof. Allan Scholz, retired Eastern Washington University fisheries biologist and professor. Prof. Scholz is author of a multivolume treatise on Eastern Washington fisheries, and is one of the foremost experts on Spokane River redband trout.

Prof. Scholz determined that the state’s flow rule — setting the Spokane River flow rate at 850 CFS below the Monroe Street Dam in the summer — is inadequate to protect and restore a healthy redband trout population, and that the scientific study prepared in support of the rate was flawed. Conservationists point out that the Department of Ecology could have accommodated the needs of both river recreationists and fish without sacrificing fish.

“Our city owes its origins, its beauty, and a great deal of its past and present life to the Spokane River,” said Tom Soeldner, co-chair of Sierra Club’s Upper Columbia River Group based in Spokane.  “It would be a betrayal of the river and our identity if we did not maintain healthy and aesthetic river flows.”

Petitioners point out that Ecology has a duty under state law and the public trust doctrine to amend the rule to adopt flows that are fully protective of all public instream values, including fish and wildlife, recreation, navigation, water quality, and scenic beauty. Flows that are not protected are at risk to be diverted from the Spokane River for out-of-stream water uses, including Idaho pumpers, the City of Spokane, and the Office of the Columbia River’s Spokane-Rathdrum ASR project.

“Excluding rafters, kayakers, and canoeists in setting flows sets a dangerous precedent for Washington State’s rivers,” said Thomas O’Keefe, Pacific Northwest stewardship director for American Whitewater “Our state’s river face many demands but ultimately we have a collective responsibility for the stewardship and protection of our state’s rivers, and Department of Ecology must protect the diversity of beneficial uses our rivers provide including recreation.”

In setting instream flows, the Department of Ecology failed to listen to boaters who use the Spokane River and businesses that depend on Spokane River recreation. Ecology also failed to conduct a basic assessment of the scenic values of the Spokane River as it flows through the gorge and Riverside State Park – important to users of the Centennial Trail and others.

“The state needs to fulfill its trust and stewardship responsibilities to protect the Spokane River for present and future generations,” said Andrea Rodgers, attorney with Western Environmental Law Center. “Setting flow rates for the river that do not protect fish, sacrifice recreational boaters’ uses of the river, and cost Spokane businesses needed income is an abdication of the state’s legal duty.”

The Department of Ecology has 60 days to respond to the citizens’ petition. Petitioners are Sierra Club, CELP, and American Whitewater, and are represented by attorneys Andrea Rodgers (WELC) and Dan Von Seggern (CELP).

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