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Protecting Spokane River summertime flows goes to court

News Advisory – Court hearing on June 9

Contacts:

  • Dan Von Seggern, Center for Environmental Law & Policy, (206) 829-8299, dvonseggern@celp.org
  • Andrew Hawley, Western Environmental Law Center, (206) 487-7250, hawley@westernlaw.org
  • John Roskelley, Center for Environmental Law & Policy, (509) 954-5653 john@johnroskelley.com
  • Thomas O’Keefe, American Whitewater, (425) 417-9012 okeefe@americanwhitewater.org
  • Tom Soeldner, Sierra Club, Upper Columbia River Group, (509) 270-6995 waltsoe@gmail.com

Next step in process essential for future of river and Spokane community

Issue: When water is flowing in the Spokane River during hot summer months, should the River’s water be protected for community recreational and aesthetic use and river fish and wildlife — or should it be available to be taken from the River by the State Dept of Ecology through the granting of water rights?

State court: Thurston County Superior Court, Hon. James Dixon, Judge.

Where: Thurston County Courthouse, 2000 Lakeridge Drive, Olympia

When: Friday, June 9 1:30 PM.

Spokane River issues before the court

The beloved Spokane River flows through the second largest city in Washington state, including spectacular waterfalls and a deep gorge. In most summers, enough water flows in the River to support fishing, river rafting, and other outdoor recreation. River advocates asking the Court to hold the Department of Ecology to its duty to protect fish and wildlife, scenic, aesthetic and recreational values, and navigation, when establishing the minimum summer flows allowable for the Spokane River.

Overwhelming public support…ignored

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. In setting instream flows, the Department of Ecology’s decision failed to take into account boaters who use the Spokane River, fishermen who pursue the river’s wild redband trout, 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.

Overall the state agency ignored all public comments in support of protecting the Spokane River and adopted unchanged its flow rule of 850 cubic feet per second (CFS) – near-drought level river flows that will jeopardize the Spokane River and its public uses.

Need to protect recreational use of the Spokane River

River advocates retained Dr. Doug Whittaker and Dr. Bo Shelby, experts in recreation and aesthetic flows from Confluence Research and Consulting, to evaluate appropriate flows. Dr. Shelby and Dr. Whittaker participated in establishing aesthetic flows for Spokane Falls, and are the foremost national experts on flows. They concluded 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.

Fish need water

Spokane River fisheries need cold, abundant water. 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 below the Monroe Street Dam in the summer at 850 CFS – is inadequate to protect and restore a healthy redband trout population, and that the scientific study prepared in support of the rate was flawed. The Department of Ecology could have accommodated the needs of river recreationists and fish without sacrificing fish.

Protecting aesthetics in the city’s heart

“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.”

Flows not protected in the flow rule are flows lost to the river

The Department of Ecology has a duty under state law and the public trust doctrine to adopt flows that are fully protective of all public instream values, including fish and wildlife, recreation, navigation, water quality, and scenic beauty. Again, 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.

Appellants are Sierra Club, Center for Environmental Law & Policy and American Whitewater, and are represented by attorneys Dan Von Seggern (CELP) and  Andrew Hawley (WELC).

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CELP Receives $200,000 from Columbia Riverkeeper Lawsuit Settlement

by Trish Rolfe

CELP has a long history of working to protect the Columbia River Watershed, and now thanks to Columbia Riverkeeper, we can do even more work. Last week the Federal District Court for the Eastern District of Washington entered an agreement settling a Clean Water Act case between Columbia Riverkeeper and Sandvik Special Metals, LLC.

This case began in 2015, after Sandvik reported that it discharged more ammonia and fluoride into the Columbia River than the company’s water pollution permit allowed. Under the agreement, Sandvik will update its water pollution control technology and fund several substantial projects to improve water quality in the Columbia River and its tributaries in Eastern Washington.

CELP was selected to receive funding from this settlement to work protect and restore streamflow and water quality in the mid-Columbia River basin to support endangered salmon and steelhead, other aquatic life, and recreational opportunities. The Columbia River, many of its tributaries, and their aquatic resources are negatively impacted by low or altered streamflow. Low streamflow causes or exacerbates many of the water quality problems that impact aquatic life in the Columbia River basin, such as high water temperatures, low dissolved oxygen levels, and high concentrations of pollutants.

CELP’s work to protect water quantity and streamflow in the mid-Columbia basin will consist of:

2. CELP’s Mid-Columbia Basin Instream Flows Initiative

Water quantity and water quality are closely connected, especially with respect to water temperature. Setting enforceable minimum instream flow requirements in tributaries of the Columbia River will help protect water quality in these tributaries and ensure that endangered Columbia River salmon and steelhead have adequate spawning and rearing habitat. Increasing instream flow in Columbia River tributaries could also enhance thermal refugia in the mainstream Columbia River at the mouth of these tributaries, which are used by migrating adult salmon and steelhead.

The State of Washington is obligated, under statutory programs, the public trust doctrine, and U.S.-Tribal treaties, to protect and sustainably manage river flows. Since 1969, state law has explicitly directed state agencies to adopt rules to protect instream flows for public benefit in each watershed. Nonetheless, formal instream flow protections have been adopted for only one-third of Washington’s watershed. Many of the remaining unprotected watersheds are tributaries to the Mid-Columbia River in central Washington.

CELP’s Mid-Columbia Basin Instream Flows Initiative would examine which Columbia River tributaries in central Washington currently do not have mandated minimum instream flows. Some of the unprotected tributaries in the Mid-Columbia basin include the Wind, White Salmon, Klickitat, Palouse, Pend Oreille, and Sanpoil rivers, and Rock and Glade creeks.

2. CELP’s Ethics & Treaty Project

CELP’s Ethics & Treaty Project focuses on working with tribes and conservation organizations to advocate for modernizing the Columbia River Treaty. The mission of CELP’s Ethics & Treaty Project is to modernize the Columbia River Treaty to promote the common good through stewardship and justice, while encouraging respectful dialogue and an international water ethic for the Columbia River.

Specifically, CELP seeks to support efforts to include “ecosystem-based function” as a new primary purpose of a re-negotiated Columbia River Treaty, on equal footing with the Treaty’s two current purposes: hydropower and flood risk management. As part of this effort, we would support work to restore fish passage to the Upper Columbia River, including all watersheds where salmon historically migrated, including the Spokane and Pend Oreille River basins.

CELP’s Ethics & Treaty Project will continue to focus on public outreach and education. Thus far, we have hosted Ethics & Treaty conferences all over the Pacific Northwest and Canada, and we hope to host several more in the coming years in Montana and in British Columbia. We will also host roundtable calls to connect tribes, conservation groups, and citizens from Canada & the U.S. who are interested in modernizing the treaty. Facilitating these outreach and organizing activities across several western states and provinces requires a significant commitment of staff time and resources. This funding would allow CELP to intensify and extend its Ethics & Treaty Project to advocate on both sides of the border for a re-negotiated Columbia River Treaty that recognizes the importance of maintaining the Columbia’s ecosystem-based function.

Read more about the case in the Tri-City Herald.


Watersheds to Watch: WRIA 56 Hangman (Latah)

by Elan Ebeling
 

Hangman or Latah Creek, originates in the foothills of the Rocky Mountains in Idaho, and flows across the border into Washington, where it stretches through the city of Spokane and joins with the Spokane River. WRIA 56 encompasses the section of the creek in Washington State, starting from the border with Idaho.

The Hangman Creek Watershed has a long history of agriculture. In the early part of the 20th century, thousands of acres of forest were cleared for farming. Modifications to straighten stream channels, and new irrigation channels and ditches resulted in erosion, poor water quality and increased flash flooding that continues in the present day.

Agriculture continues to be the most significant use of land in the Hangman Creek Watershed (about 65%), and a century of heavy farming and population growth has taken its toll on water quantity, quality, and fisheries. According to the Hangman Creek Water Resources Management Plan, during the summer months, the average flow is below 3 cfs. Low flows also contribute to temperature and water quality issues. Hangman Creek has been described as “one of the most degraded waterbodies in eastern Washington State,” and fails to meet Washington State water quality standards for temperature, fecal coliform, and pH. In addition, the degraded water from Hangman Creek flows into the Spokane River every year along with heavy sediment from erosion, contributing to algae blooms and other water quality issues on the Spokane.

Although the creek’s native name Latah means “fish” in Nez Perce, few remain in Hangman Creek. As a result of the region’s long history of agriculture, fish habitat has gone through dramatic changes in the last century. While Hangman Creek once had healthy populations of native redband trout, salmon, and steelhead, the alterations made to vegetation patterns and channels to accommodate farming, as well as increased sediment and temperature in the river has resulted in heavily reduced populations of trout, and near nonexistent populations of other game fish.

These problems have been exacerbated by the proliferation of domestic permit exempt wells, and the over allocation of water rights. Ecology’s Water Availability Report states that the Department of Fish and Wildlife has limited most surface water sources in Hangman Creek through Surface Water Source Limitations, and that the majority of water has already been appropriated.

An instream flow rule for WRIA 56 is crucial to the future of Hangman Creek to protect critical fish habitat and combat worsening water quality, yet none exists. The Hangman Creek Watershed Planning Unit was unable to come to a consensus on exact values for instream flow recommendations by the time their 2005 Watershed Management Plan was published, but agreed that they wanted an instream flow rule. What’s more, their plan stated that they would notify Ecology if a consensus could not be reached in the next phase of planning, and expected Ecology to complete the process and enact a rule if necessary.

Despite the completion of an instream flow study on Hangman Creek, no rule exists for WRIA 56, and information on the current status of rulemaking is sparse. Although setting instream flows will not solve Hangman Creek’s severe pollution and erosion issues, it is critical to preserve what little water remains, as population growth predictions and increased demand for water resources only point to more issues in the future. As acknowledged by the WRIA 56 planning unit, rulemaking is ultimately the responsibility of the Department of Ecology. CELP urges Ecology to act now to develop an instream flow rule to protect the Hangman Creek watershed.

If you are interested in helping to secure protections for the Hangman Creek watershed, please email CELP at contact@celp.org.


Washington Water Watch: February Edition

Check out CELP’s February edition of Washington Water Watch! In this issue: an update on water legislation making its way through the State Legislature, an article on the Grays-Elochoman & Cowlitz watersheds, and updates on our upcoming events.

Read the February issue of Water Watch here.

 


Watersheds to Watch: the Grays-Elochoman & Cowlitz

WRIAs 25 and 26 are located in southwestern Washington, and include large portions of Lewis, Cowlitz, Skamania, and Wahkiakum counties. WRIA 25, known as the Grays-Elochoman watershed, encompasses the Grays and Elochoman Rivers, and Skamokawa, Abernathy, and Coal Creeks. WRIA 26, designated as the Cowlitz watershed, includes the upper and lower Cowlitz Rivers, Cispus, Tilton, Toutle, and Coweeman Rivers, and Mayfield Dam. Both WRIAs include many subbasins that drain into the Columbia River, however, they do not encompass the Columbia River itself.

WRIAs 25 & 26 are critical watersheds for fish – they include 24 subpopulations of salmon and steelhead listed under the ESA, more than anywhere else in the lower Columbia region. In addition, the Cowlitz basin is one of the most densely farmed areas of western Washington, and water is over-appropriated. A 2012 Department of Ecology Water Availability report for the Cowlitz watershed describes a need for further regulations to manage the basin’s water supply, including an instream flow rule as well as closing critical subbasins to future water withdrawals. The report also lists 17 river and creek basins that had been listed as “restricted” or “closed” to new uses as determined by the Department of Fish and Wildlife’s Surface Water Source Limitations.

Although the Department of Ecology acknowledges the need for regulations in WRIAs 25 and 26, the rulemaking process has not been completed. The Lower Columbia Fish Recovery Board (LCFRB) began work on a joint watershed plan for the Grays-Elochoman and Cowlitz basins in 1999. In 2006, a draft of the plan was unanimously adopted by Wahkiakum, Skamania, Lewis, and Cowlitz counties. The 2006 plan recognized that climate change will impact streamflows, and determined that water usage was already beyond a sustainable level. Among the plan’s recommendations were instream flow rules for 10 rivers and streams, many closures of various subbasins, and the establishment of reservations in each basin to ensure an adequate water supply for future uses.

In 2008, the LCFRB issued a Detailed Implementation Plan for WRIAS 25 and 26, and the Department of Ecology began the instream flow rulemaking process. In mid-2010, however, the rulemaking process was halted. The Department of Ecology provides two reasons for this on their website: “public concerns on the level of local participation, supply for rural water users in the Cowlitz watershed (WRIA 26), and ground well metering,” and “Gov. Gregoire’s Executive Orders 10-6 and 11-03, suspending non-critical rule development and adoption in 2011 and 2012.” In response to public concerns over the proposed water restrictions, particularly in the Cowlitz, the LCFRB released revisions for the WRIA 26 Cowlitz Watershed in 2014. While the 2006 plan recommended that all subbasins in the Cowlitz basin be closed to new groundwater withdrawals (save for reservations and domestic wells), the revised plan included the complete opening of the lower Cowlitz watershed to future withdrawals. In addition, Ecology agreed to remove the metering language from the plans to appease concerned residents.

Despite the easing of the original plan’s water use restrictions (and the fact that both of Governor Gregoire’s Executive Orders cited by Ecology are long expired), there is still no instream flow rule for WRIAs 26 and 26. Especially in critical regions where water resources have been over-appropriated for years, setting regulations like instream flow rules cannot be delayed. CELP urges the Department of Ecology to follow up on its priority of setting instream flows for WRIAs 25 & 26 to ensure adequate water for people, farms, and fish in the Grays-Elochoman & Cowlitz basins.

If you are interested in helping to secure protections for the Grays-Elochoman & Cowlitz watersheds, please email CELP at contact@celp.org.

January 2017 Edition of Washington Water Watch

Check out the latest edition of our monthly newsletter, Washington Water Watch. In this month’s issue you’ll find an article on the current water bills in the Washington State legislature, an update on CELP’s recent motion for summary judgment in the Leavenworth National fish hatchery case, an article on the Lyre-Hoko watershed, and a notice about our upcoming Spokane event, Winter Waters.

Read the January 2017 issue of Washington Water Watch here.


Watersheds to Watch: WRIA 19 Lyre-Hoko

This is the first in a series of blog posts examining unprotected watersheds in Washington State.

 

Background on Instream Flow Rules in Washington State

 

In 1998, the Washington State Legislature passed the Watershed Management Act, which provides a framework for local governments, affected Indian Tribes, citizens and stakeholders to develop plans to manage the water resources within their watershed. There are 62 watersheds or Water Resource Inventory Areas (WRIAs, pronounced “Why-rahs”) within Washington State.

In addition to the mandatory issue of water quantity, planning groups may choose three optional components to include in their plans: making instream flow recommendations that the Department of Ecology can use to establish instream flows by rule, water quality, and fish habitat. While some of the 62 watersheds have recently adopted instream flow rules (like the Dungeness Rule which was adopted in 2013, and which CELP successfully helped to defend in court in 2016), far more have instream flow rules that are decades old or no instream flow rule at all.

Instream flow rules act as a “water right for the river,” and function the same way as any other legal water right, protecting instream resources from future water withdrawals. These rules are important for ensuring that there is enough water in rivers and streams to provide for clean water, fish habitat, recreation, and aesthetics, and are especially important given the threat of climate change and the state’s historic drought of 2015.

 

WRIA 19: The Lyre-Hoko

 

WRIA 19, designated as the Lyre-Hoko watershed, is located in Clallam County in the northwestern most part of the Olympia Peninsula, spanning from the tip of Cape Flattery to just west of the Elwha River basin. WRIA 19 encompasses the major waterways of the Lyre, Seiku, Hoko, Clallam, Pysht, East and West Twin Rivers, and Salt and Deep Creeks, which drain directly into the Strait of Juan de Fuca along with many other smaller streams.

CELP has identified WRIA 19 as a critical watershed in Washington State. The Olympic Peninsula was one of the first three regions where Governor Inslee declared drought conditions in 2015 (the Lyre-Hoko watershed was named specifically along with the Quilcene-Snow, Elwha-Dungeness, Sol Duc-Hoh, and Queets-Quinault). WRIA 19 is also an important watershed for salmon – it encompasses 27 separate salmon-bearing rivers and streams that support Chinook, chum, and coho. Although the watersheds in the Lyre-Hoko area don’t support salmon runs listed under the Endangered Species Act, the nearshore areas of WRIA 19 serve as an important migratory corridor for salmon populations (including those listed under the ESA) leaving or entering the Strait of Juan de Fuca. According to a 2015 Salmonoid Restoration Plan for WRIA 19 published by the North Olympia Peninsula Lead Entity for Salmon, however, many of the salmon populations in individual basins are considered depressed or critical, and are projected to decline.

Despite its obvious need for protection, WRIA 19 does not have an instream flow rule. Clallam County formed an official planning unit under the Watershed Management Act and initially unanimously agreed on instream flow recommendations in 2005, but disagreement over the specific numbers ultimately killed the plan in 2010 (here’s a link to the planning unit’s 2009 draft plan). While the Makah and Lower Elwha Clallam tribes supported the proposed instream flow numbers in the interest of fish habitat and adequate stream flows, the Clallam County PUD opposed them as being too high to allow for continued development and human consumption, (the timber industry also firmly opposed parts of the plan relating to riparian buffers). With the groups at an impasse, the planning process unraveled, and no plan was approved.

If a local planning unit fails to agree on a plan, the responsibility for instream flow rulemaking falls back to the Department of Ecology. Although it is unclear whether Ecology has an obligation to enact an instream flow rule in this circumstance, the fact remains that there is ample evidence that a rule needs to be put in place. In its own 2011 report on water availability in the Lyre-Hoko watershed, the Department of Ecology stated that the Department of Fish and Wildlife had recommended against issuing new water rights in sections of WRIA 19 “in order to protect fish populations.” Despite the fact that much of the requisite research and work was done in the nearly decade long local planning process, there remains no instream flow rule in place for the Lyre-Hoko watershed six years later.

Ecology has provided protection for many watersheds around the state – for example, CELP worked with the Department of Ecology to successfully defend the agency’s instream flow rule for the Dungeness River in 2016. However, CELP urges Ecology to take timely action in critical watersheds like the Lyre-Hoko in order to ensure healthy flows, abundant water for future generations, and plentiful habitat for fish.

If you are interested in helping to secure protections for the Lyre-Hoko Watershed, email CELP at contact@celp.org.