Court Upholds Dungeness Instream Flow Rule that protects River and Fish

News Release
October 25, 2016

 

Contact:

Dan Von Seggern (Center for Environmental Law & Policy)
206.829-8299
dvonseggern@celp.org


 

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.

Dungeness6 - Copy 800px

Dungeness River © Steve Farquhar

 

 

 

 

 

 

 

 

 

 

 

 

 


Washington Supreme Court Decision Protects Instream Flows, May Slow Rural Development

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.


Washington Water Watch: August Edition

The August issue of Washington Water Watch is here! Check it out for an article online casino jolietta on Spokane recreation business ROW, a spotlight on CELP volunteer Gwyn Perry, an update on the Spokane River PCB case, gardening with native plants, and more!

Read Washington Water Watch: August.


Water “CPR” needed for extremely low Spokane River

H2KNOWriverlow-1

News Release  – August 30, 2016

Public Water Alert

Inland Northwest residents encouraged to use Water CPR:

Conserve – Protect – Reuse

Despite cooler weather in forecast – Spokane River water levels are in the red

Contacts:

Spokane River 8-30-2016 741 cfs

Spokane River today, August 30, 10:30 a.m. – flows at 741 cubic feet per second. People’s Park – confluence of Hangman Creek and Spokane River.

Spokane – Today river advocates again called on their neighbors and Spokane City water managers to turn down the spigots, and turn off sprinklers. Spokane River flows dropped below 850 cubic feet per second (cfs) – the state-mandated minimum flow – more than a week ago, and have been running at or below 750 cfs most of this week.    

“Think about our river and aquifer as one,” said John Roskelley, former Spokane County Commissioner with the statewide Center for Environmental Law & Policy.   “The water we use from the aquifer is water lost to the river for fish and wildlife habitat. Remember water CPR: conserve, protect, reuse. Water is our most important resource – let’s not waste it.”

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Spokane River 8-30-2016 741cfs

Watering alleys in the City of Spokane, wasting water. August 30, 2018. Meanwhile, the river is gasping for water.

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

  1. Reduce outdoor watering (especially stop over-watering law 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)

“Our water bills don’t begin to reflect the true cost of water,” said Tom Soeldner, retired Lutheran Pastor with the local Upper Columbia River Group, Sierra Club. “The real water bill for this region is being paid for by the Spokane River – the fish, wildlife, and people whose jobs depend on the river. The immediate action we can take to right this wrong is to stop using water unless it’s essential.”

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. 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.

“These low river flows are hard on fish,” said Sam Mace, who frequently fishes the river. “When the Spokane River flows are in the red, people who care about the river should be seeing red. We can do better, all of us, in using water wisely to protect the Spokane River.”

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.

The H2KNOW campaign is a community-based water conservation project to help the region recognize the intimate relationship between the Aquifer and Spokane River, and the need to conserve water to help protect the Spokane River.

Links –

 

 

 

 


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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July Issue of Washington Water Watch

Click here to read the July issue of Washington Water Watch.

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!


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 –


June Issue of Washington Water Watch

Click here to read the June issue of Water Watch.

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

Remembering Virgil Seymour – Sinixt Leader
(1958-2016)

   – 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.

IMG_8796From 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.

For more:

Virgil Seymour:  The passing of a true diplomat.  Laura Stovel, The Revelstoke Current