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.
October 25, 2016
Dan Von Seggern (Center for Environmental Law & Policy)
Court Upholds Dungeness Instream Flow Rule that protects river and fish!
Seattle, WA – On Friday, October 21, 2016, Thurston County Superior Court Judge Gary Tabor upheld the Instream Flow Rule for the Dungeness River basin, denying a challenge from a group of property owners and developers. The Center for Environmental Law and Policy (CELP) intervened in this matter to defend the Rule, working with the Department of Ecology. CELP Staff Attorney Dan Von Seggern argued the case along with Ecology’s attorneys. After the decision, he stated: “This is a win for the environment and for water management in Washington. The Dungeness Rule strikes a balance by protecting streamflows, fish, and senior water users, while still providing water for responsible development. CELP is pleased with Judge Tabor’s decision and hope that this Rule will provide a guide to protecting other rivers in our state.”
In upholding the Rule, Judge Tabor held that the Rule was not unlawful and that Ecology did not exceed its authority when it adopted the Rule. He also reaffirmed that permit-exempt wells are subject to the “first-in-time” system of water appropriations used in Washington.
The Dungeness River is home to steelhead, bull trout, and four salmon species. Most of these fish are listed as “Threatened” under the Endangered Species Act. Low river flows, particularly in summer and early fall, block upstream migration of spawning salmon and risk causing extinction of these fish. Historically, much of the River’s flow has been diverted for irrigation, although irrigators have agreed to limit withdrawals to no more than one-half of the river’s summer flow. Uncontrolled development using private (“permit-exempt”) wells further depleted streamflows and added to the pressure on fish populations. The Dungeness Rule protects instream flows that are needed to support salmon populations and other instream values, while allowing new residential development through mitigated use of water from permit-exempt wells.
The Dungeness watershed is in the rain shadow of the Olympic Mountains and is unique in the Northwest as the only coastal watershed that is dry enough to require irrigation for agricultural crops. The River is relatively short, flowing 32 miles from the Olympic Mountains to the Strait. It is used by chinook, coho, chum, and pink salmon as well as steelhead, cutthroat, and bull trout. All salmon stocks are depressed relative to historic levels, and chinook, chum salmon and bull trout are listed as Threatened under the ESA. Insufficient stream flow has been identified as a key cause of reduced fish levels.
The Dungeness Rule was developed over a 20-year period through a collaborative process that included state, local, and Tribal governments, property owners, environmental groups, and water users. “This rule is an example of how rules can be set to make sure water resources in the rivers and streams are protected,” said Trish Rolfe, CELP’s Executive Director.
Water for development is provided through a water bank, which ensures that streamflows are not depleted by water for development. Amanda Cronin of Washington Water Trust explains that the Dungeness Water Exchange “provides an efficient one-stop shop for individual home builders in the Dungeness Valley. Eligible homebuilders simply begin the building permit process at the County and then submit a mitigation application and one-time payment to the Exchange.”
Judge Tabor ruled from the bench and a written decision is expected in the coming weeks. The case is Bassett et al. v. Ecology, Thurston County case No. 14-2-02466-2.
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.
News Release – June 6, 2016
EPA challenged over failures to clean up Spokane River PCB pollution
- Rachael Paschal Osborn (Sierra Club, Center for Environmental Law & Policy) 509.954-5641 firstname.lastname@example.org
- Richard Smith (Smith & Lowney, PLLC) 206.860-2124 email@example.com
- Dan Von Seggern (Center for Environmental Law & Policy) 206.829-8299 firstname.lastname@example.org
- Ted Knight (Spokane Tribe of Indians) 509.953-1908 email@example.com
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.
- Filing with Judge Rothstein: EPA’s plan inadequate (June 2, 2016)
- 9th Circuit Court of Appeals ruling (April 5, 2016)
- Federal Court ruling (October 24, 2014)
- PCB Cleanup Website (Sierra Club)
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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
- Trish Rolfe, Center for Environmental Law & Policy, firstname.lastname@example.org, 206.829-8299
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.
- 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)
- Honoring event webpage
- Profile, Professor Rodgers
- The Personal Impact of the Boldt Case: A Tribute to Professor William H. Rodgers , Jr.
- Rep. Derek Stanford
- About Professor Ralph W. Johnson, and the Watershed Hero Award given in his name
Summer is coming! This month’s issue of Water Watch features information on our upcoming Celebrate Water event, an article on our letter to Governor Inslee about restoring higher flow requirements on the Spokane River, a “Love Letter to a River” by CELP member Pat Sumption, and an introduction to CELP’s newest board member, Jill F. Johnson.
Happy Earth Day from CELP! This month’s issue features an article on our What’s Upstream Campaign, updates on the Spokane River PCB cleanup and the Fox v. Skagit County decision, and info on GiveBIG and our upcoming Celebrate Water event. Plus, in honor of Earth Day, learn how you can prevent pollution of Washington’s rivers and streams in your own backyard!
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).
This edition features water issues in the legislature, an update on Dungeness River litigation, and news about the WSU Water plan and Columbia River Treaty letter. Meet our new Development and Outreach Coordinator and learn about our upcoming events in Spokane and Idaho, our call for photos and stories and more.