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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:

 

 


CELP Hiring Staff Attorney

Center for Environmental Law and Policy (CELP), is seeking candidates for a full-time Staff Attorney. This position will focus on agency advocacy, public interest litigation, policy and legislative work, public outreach, and administrative support. Please see full job description here.

To apply please e-mail cover letter, resume, writing sample (not more than 10 pages), transcript, and references to Trish Rolfe at jobs@celp.org by February 15, 2015.


Inseparable: Land Use and Water Availability

By Patrick Williams, Attorney at Law

Land use and water availability are inextricably intertwined throughout the West and Washington is no exception. Here in Washington, this connection is causing difficulties for local county officials and the Department of Ecology.  County officials are responsible for approving building permits and subdivision plans for new development.  In a 2011 Washington State Supreme Court decision, Kittitas County v. Eastern Washington Growth Management Hearings Board, the Court ruled that the Growth Management Act (GMA) requires counties to protect water resources.  The Court also ruled that when counties approve land use permits, they must make water availability determinations that are consistent with water resources laws.   Water availability means more than simply determining whether a well can physically supply water. Counties throughout Washington may not issue land use permits if water is not legally available to supply the project.

Because Washington follows the prior appropriation system for water management, people with senior water rights are entitled to protection from junior or newer water uses. This is true whether the older right is for irrigation purposes or for instream flows designed to protect fish and natural river ecosystems.  This is also true for permit-exempt wells, which are commonly used to supply water for rural development.  Therefore, when county officials are asked to approve water supply for a new development, they must ensure that the new water use will not utilize water that is already allocated to a senior water use, including instream flows.

This raises several problems.  First, Washington’s waters are fully allocated in many watersheds, due to demands by municipalities, irrigators, and industries along with instream flow rules and tribal treaty rights to water for fisheries.  County land use approvals that approve water supply that is otherwise appropriated can lead to liability issues.  Most counties do not have the resources or technical expertise to assess water supply availability.  The Court in Kittitas recognized this and noted that Ecology should assist the counties in assessing whether water is legally available.  The question then becomes: how will this process work?

The Kittitas decision spurred CELP, assisted by Earthjustice, to ask Ecology to provide guidance to counties regarding water resources law and implementation.   CELP’s May 2012 letter to Ecology laid out a framework for step-by-step review of the status of water resources.   Ecology did draft and circulate proposed guidance in October 2013, but that document failed to recognize some basic principles of water law, including hydraulic continuity.   The draft guidance was heavily criticized by CELP, tribes and other parties.

In December 2013, five legislators sent a letter to Governor Inslee asking that Ecology address legal issues relating to water supply.  In response, Ecology established two workgroups.  The “Rural Water Supply” workgroup is discussed elsewhere in this issue of WaterWatch.   Of significance here, Ecology also initiated the Water Availability Guidance for Counties Workgroup.  Ecology’s goal is to work with counties and interested stakeholders on how to help counties with duties to protect water resource consistent with Water Code requirements.[1]  The workgroup is open to the public and CELP is attending, with county officials comprising the majority of those in attendance.

The first meeting was held in Olympia on September 11.  While Ecology’s intent to provide clear guidance to the counties on water resources law is laudable, the execution fell flat.  The initial meeting was intended to establish goals and outcomes for the workgroup, but most of the meeting was spent discussing which stakeholders should be at the table.  Beyond this, many county officials attended the workgroup in the hope of getting basic advice about how to address the land use water availability question. Unfortunately Ecology did not provide assistance for this issue.  So what are the counties to do?

CELP’s Proposal:

At the meeting CELP distributed its May 2012 letter that outlines how county officials should address water availability in the land use context when an applicant proposes using a permit-exempt well.   Based on court decisions and the water code, counties should follow these steps:

  • First, it is important to note that the law puts the burden on the applicant for a building or subdivision permit to demonstrate that water supply is adequate.  This is consistent with water code requirements that applicants for water rights have the burden of meeting statutory tests regarding availability, impairment and the public interest.
  • The applicant for a land use permit must first show there is no closure of groundwater. If groundwater is closed to further withdrawals, then the permit may be approved, but only if full mitigation for the water use is demonstrated.
  • If there are surface water closures, then the building applicant must show there is no hydraulic connection between the groundwater proposed for the development and the surface water closed to new appropriations.
  • If there is an instream flow water right at issue, the applicant must show that the flows are met throughout the year, every year and the applicant’s water use will not impact the flows.
  • If the instream flows are not being met the applicant must fully mitigate any likely impact unless there is reliable science proving there is no connection between the groundwater and the surface water.

The bottom line is that neither the counties nor Ecology can allow for new developments to take water already appropriated for instream flows or existing and senior water users.  The prudent way forward is to identify those areas within counties where groundwater is connected with surface waters for which instream flows are established, or where groundwater is closed to further withdrawals.  In those situations, counties should presume that water is not legally available, and issue permits only where full mitigation is offered.  Ecology can assist the counties in identifying these areas by providing hydrologic reports and information.  This should be the first step in providing clarity to counties to approve land use decisions that require water supply.

Only with real and substantive mitigation will counties be able to approve new rural development that requires water supply.  It is time for the state to make a real and sustained effort at creating a reliable and protective mitigation program; one that protects instream flows and allows for reasonable rural development.

About the Author:  Patrick Williams is principle in the Patrick Williams Law Firm in Seattle, where he represents clients on public interest water and environmental law matters.  He served as CELP’s staff attorney between 2006 and 2009 and represents CELP in the County Water Guidance Workgroup.  You can reach him at Patrick@patrickwilliamslaw.com and 206-724-2282.


[1] Ecology’s Water Availability Guidance for Counties Website, http://www.ecy.wa.gov/programs/wr/wrac/rwss-wag.html.


In Honor of One of the Northwest’s Greatest Leaders: Billy Frank, Jr.

 Billy FrankToday, we lost one of the nation’s and the state’s greatest leaders:  Billy Frank, Jr.

Billy Frank, a Nisqually tribal member, changed history.  He helped spark the grassroots resistance of tribal people in the late 1960s and 1970s against Washington State’s illegal policy of prohibiting fishing off-reservation. Billy was arrested over 50 times during the “fish wars” as were many other tribal leaders.  That struggle ended up in the courts.  United States v. Washington, also known as the Boldt decision, made the 20 treaty Indian tribes in western Washington co-managers of the salmon resource with the State of Washington and re-affirmed the tribal right to half of the harvestable salmon returning to western Washington. 

Billy did not rest after that monumental victory, but ceaselessly advocated for stewardship of the blessings we enjoy here in the Northwest: the fishery and the environment that supports and sustains us all.  His advocacy was grounded in the wisdom of his family, his tribe, and the generations that preceded him.  Billy’s activism ended up restoring habitat destroyed by hydroelectric plants, protecting tribal lands, and promoting cooperative management of natural resources.  Most recently, Billy took up the contentious issue of Washington’s fish consumption rate—as a civil rights and an environmental issue—urging the Governor not to increase the “acceptable” exposure rate to carcinogens in fish to increase industry profits.   http://nwifc.org/2014/03/put-people-profits/

CELP was honored to have Billy serve on its honorary board of directors for many years.  In 2012, CELP awarded the Northwest Indian Fisheries Commission, which Billy headed for thirty years, its Ralph W Johnson Award in 2012 in honor of the Commission’s work to preserve the waters of this state for all Washingtonians.  As CELP said at that time: “In these days when the government agencies tasked with protecting our waters, fish, and wildlife are relegated to protecting their budgets, the advocacy of the Commission has been a critical force in preserving the public’s interest in our rivers, streams, and aquifers.”     

We at CELP offer our deepest condolences to Billy’s wife and family, his colleagues and friends at the Commission, and the members of the Western Washington tribes that the Commission represents. 

We are all grieving the loss of a leader and a friend who worked to unite us all, never flinched from a tough position, and whose warmth and wicked sense of humor kept us going.  The world is less vibrant with his passing. 


The Seattle Human Rights Commission Stands Up for a Protective Fish Consumption Rate as Human Rights Issue!

Today the Seattle Human Rights Commission passed Resolution 14-01 calling on Washington State to Raise the Fish Consumption Rate to that of Oregon’s at 175 g/day using a risk level of 10-6 to ensure that all Washingtonians, even our highest fish consumers, are protected in the free and equal exercise of our human rights to health and our own means of subsistence. This is a huge step forward for public health and human rights.  And better still the Commission is calling on all of us to urge the Governor and Ecology Director Maia Bellon to act NOW and adopt the rule that science, public health, and human rights clearly demand.

This is how the Human Rights Commission made the connection between the fish consumption rate and human rights….

Everyone has a human right to health and to live in conditions that will ensure their health. Polychlorinated biphenyls (PCBs), dioxins, and mercury are a few examples of toxic substances persistent in state waterways. Because chemicals accumulate in fish tissue, fish consumption is the primary route for human exposure to chemical pollutants. High fish consumers, such as Native Americans or people in other communities whose diets include fish and shellfish, are at a particularly high risk. But everyone who eats fish harvested from Washington’s waters is at risk of cancer due to the chemicals found in our waterways. A more protective FCR accompanied by an appropriate risk factor will set more stringent pollution and clean-up standards for Washington’s waterways to ensure that even high-fish consumers in our state will be protected from unsafe exposures to harmful substances.

What can you do?

The Washington State Department of Ecology is now in its rule-making process to adopt new human health criteria in the Water Quality Standards for Surface Waters of the State of Washington, Chapter 173-201A WAC. Join the Seattle Human Rights Commission in making your voice heard on this important issue!

Pick up a phone, and call The Washington State Department of Ecology as well as Governor Inslee’s Office.  Your message could be as straightforward as the following:

For Ecology:  Director Maia Bellon (360-407-7001)

 

Hello, my name is __________, and I would like to thank Director Bellon for taking initiative in reassessing Washington’s human health criteria in the Water Quality Standards for Surface Waters. I urge the Washington State Department of Ecology to raise our fish consumption rate to at least 175 g/day with a risk of 10-6 (“ten to the negative sixth”) to protect the health and human rights of all fish consumers. Thank you.”

 

Governor Jay Inslee: (360-902-4111)

 

Hello, my name is __________, and I would like to thank Governor Inslee for taking initiative in organizing an informal advisory committee on Water Quality Standards to help him make an informed recommendation on the draft CR-102 rule. I urge Governor Inslee to recommend a fish consumption rate of at least 175 g/day with a risk of 10-6 (“ten to the negative sixth”) to Director Bellon to protect the health and human rights of all fish consumers. Thank you.”

And thank you!!!  The full text of the resolution follows: 

 

Resolution 14-01: Calling on Washington State Department of Ecology to Raise the Statewide Fish Consumption Rate

WHEREAS, all people are born free and equal in dignity and rights; and

WHEREAS, the Seattle Human Rights Commission is committed to protecting and advocating for justice, human rights, and the equal treatment of all people who live and work in Seattle; and

WHEREAS, the City of Seattle was declared to be a Human Rights City on December 10, 2012, committing itself to protect, respect and fulfill the full range of inherent human rights for all as set forth in the Universal Declaration of Human Rights and numerous other international human rights treaties; and

WHEREAS, health is an internationally-recognized human right outlined in Article 12 of the International Covenant on Economic, Social, and Cultural Rights; and

WHEREAS, Article 1 of the International Covenant on Civil and Political Rights, which the U.S. has ratified, and Article 1 of the International Covenant on Economic, Social, and Cultural Rights, which the U.S. has signed, both provide that “in no case may a people be deprived of its own means of subsistence”; and

WHEREAS, Article 20(1) of the U.N. Declaration on the Rights of Indigenous Peoples establishes and protects the right of indigenous peoples “to be secure in the enjoyment of their own means of subsistence” and Article 20(2) creates a basis for “just and fair redress” where indigenous peoples are deprived of these rights; and

WHEREAS, a state’s fish consumption rate is used to set safe and acceptable levels of pollutants that may be released into a state’s waters while still protecting the health of its citizens who consume fish harvested from the state’s waters; and

WHEREAS, a state’s fish consumption rate directly impacts its water quality standards and human health criteria; and

WHEREAS, the State of Washington has a fish consumption rate of 6.5 g/day; and

WHEREAS, Washington State’s Department of Health advises Washingtonians to consume two 226 gram servings of fish per week, a recommendation that substantially exceeds Washington State’s fish consumption rate; and


Support a No Discharge Zone in Puget Sound

Last spring, CELP, along with other groups working to protect Puget Sound, wrote to Department of Ecology’s Director Maia Bellon urging her to propose a petition to the United States Environmental Protection Agency to establish a No Discharge Zone (NDZ) for all of Puget Sound, including the Straits. 

Wonderful news:  Director Bellon has done just that!

What is a No Discharge Zone?  

A NDZ is a body of water where discharging sewage from boats, whether treated or not, is prohibited.   Under current law, treated sewage may be discharged anywhere in Puget Sound, and untreated sewage may be discharged as long as the boat is more than three miles from shore.

EPA Region 10, where Washington is located, is the only region without an NDZ.  Yet, there are more than 80 NDZs nationwide.  Puget Sound is a state and national treasure-but it is imperiled.  The evidence is overwhelming: beach closures, contaminated shellfish, dead zones in Hood Canal, the list goes on.  As Billy Frank, Chairman of the NW Indian Fisheries Commission, has said, and said often, healthy salmon migrate out of the Nisqually River only to become sick as they move through lower Puget Sound to the ocean.

Establishing a NDZ is a key strategy in the Puget Sound Partnership’s Action Agenda. We can make that strategy become a reality by submitting comments supporting a NDZ. Here’s how to do that:

There is a 60-day Public Comment Period on DRAFT NDZ Petition. 
Ecology is requesting public comment on a draft petition for a No Discharge Zone in Puget Sound in Washington State. The Draft Petition is also being sent to EPA for their input.

Please send your comments by Monday, April 21, 2014 to:

Amy Jankowiak, amy.jankowiak@ecy.wa.gov
OR
Washington Department of Ecology
Northwest Regional Office
Attn: Amy Jankowiak, 3190 160th Ave SE, Bellevue WA 98008