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Washington Water Watch: November Edition

In this issue, an article on recent victory in court on the Leavenworth Hatchery Clean Water Act Case, a story on CELP’s founding director, Rachael Osborn, being recognized by AWRA-WA with their award for Outstanding Contribution to Water Resources, a welcome to CELP’s newest staff member, Emma Kilkelly, information about our December CLE, and more.

Read the November edition of Washington Water Watch here.


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.

 


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.


Legislative Session: A Summary of Water Bills

by CELP Executive Director Trish Rolfe and Government Affairs Specialist Bruce Wishart

Water is a major topic in the legislature again this year, and several bills have been  introduced that would undermine or overturn several key Washington Supreme Court water law decisions, including the Hirst decision on permit exempt wells handed down in October. CELP has been busy testifying on these bills in Olympia to ensure protection of Washington’s water resources.

 

Senate Bills that CELP Opposes:  These bills would negatively impact instream flows and salmon.

  • SB 5010: Avoiding Ecology Review of Expansion of Agricultural Water Rights as a Result of Claimed Conservation

While we support and encourage water conservation, this bill would bypass a process in existing law to ensure that when a farmer conducts conservation then sells or transfers the water, the water is legally available for the new use.  Farmers who wish to do conservation can use the established “Trust Water Rights Program” in current law to avoid relinquishment of the water saved by conservation practices

 

  • SB 5005: Converting an Agricultural Right to a Municipal Right without Ecology Review

Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would avoid that review, allowing relinquished rights to be revived. House companion bill is HB 2084.

 

  • SB 5003: Allowing New Projects to Mine Instream Flows
    This bill overturns several recent State Supreme Court decisions on water law, allowing approval of new projects that reduces instream flows necessary to protect endangered salmon. Ecology could use different tools to impair instream flows to support new land use development and other new out of stream projects. This would result in giving a super priority to permit-exempt wells, harming senior water rights holders and instream flows.

 

  • SSB 5002: Requiring Leased Water Rights used as Mitigation to be Replaced by Permanent Water

This bill allows temporary, leased water to be used to mitigate ongoing use of domestic wells.

 

  • SB 5239: Overturning Hirst and Allowing Wells to Harm Instream Flows 

Overturns Hirst and allows unmitigated development to harm existing users of water, including instream flows. Completely undermines instream flows, making them subordinate to new wells.

 

Senate Bill CELP supports with concerns

  • SB 5024: Allows Development to Proceed under Hirst under Mitigation Plans

Allows for new development to occur in rural areas without adequate water supply provided the County adopts a mitigation plan. A county is given five years to allow new development before mitigation must be in place. Follows models used successfully in Clallam and Kittitas Counties which allow salmon-friendly development.

 

House Bills that CELP Opposes. These bills would negatively impact instream flows and salmon.

  • 1084 Converting an Agricultural Right to a Municipal Right without Ecology Review

Under current law, when a water right is transferred from agricultural use to municipal use, Ecology does a review to ensure that the water right has been in continual use (i.e.-not relinquished). This bill would bypass that review, allowing relinquished rights to be revived. Senate Companion bill 5005

 

  • 1348 Concerning the priority in the state water code assigned to various beneficial uses.

Establishes that regardless of priority date, instream flows rules are always junior to the beneficial use of water for irrigation, commercial, industrial, or potable water purposes. Changes water law, and makes Instream flow water rights a lesser water right. Would destroy meaningful protections for instream flows and  harm fish and other wildlife.

 

  • 1349 Declaring any minimal cumulative impacts of permit-exempt groundwater wells on water levels to be overwhelmingly offset by state investments in fish habitat improvement projects.

Establishes that permit-exempt groundwater withdrawals are deemed to not impair senior water rights, presumably including instream flow rules, and that the cumulative impact from permit-exempt wells on instream flows are to be “forever fully mitigated.”

Allows for out of kind mitigation for impairment of Instream flows. Makes Instream flow water rights a lesser water right. Will harm fish and wildlife because other habitat improvements are meaningless if there isn’t enough water in the streams for fish. A water right is a right in perpetuity, but habitat improvements are not permanent.

 

  • 1382 Establishing a rebuttable presumption that permit-exempt groundwater withdrawals do not impair instream flows or base flows. Establishes that permit-exempt groundwater withdrawals are presumed to not affect or impair instream flows unless “conclusive evidence” is provided proving otherwise.

This would result in giving a super priority to permit-exempt wells, harming both senior water right holders and instream flows.

 

  • 1394 Regarding the processing of applications for Columbia river water right permits to clarify legislative intent to ensure that the rules can be implemented as written.

 

This bill would allow out of kind mitigation for impairment of Instream flows on the Columbia River System.  It would harm instream flows and the fish and wildlife that depend on adequate water in the river.   This is a companion to SB 5269.

 

  • 1459 Considering the full hydrologic cycle in the review and approval process of new water uses. Changes the groundwater code and GMA such that Ecology and counties have to look at the “full hydrologic cycle” when assessing the impact of new groundwater withdrawals. This would result in impairment of streamflow, because removal of trees does not guaranty that groundwater is recharged or that streamflow is improved.

 

  • 1460 Redesigning the transfer of water rights, including the statutory process of relinquishment. Changes the relinquishment statutes, requiring that Ecology provide conclusive evidence to prove water relinquishment. Establishes that water rights relinquished go into a special trust that be made available for irrigation, municipal, and other beneficial uses. This undermines water law by removing the “use it or lose it” provision designed to make sure water is put to a beneficial use. Shifting the burden to Ecology to prove that the water hasn’t been beneficially used, which is almost impossible to do.

 

  • 1748 Modifying provisions within the growth management act to improve affordable housing opportunities in rural communities; Rolls back the Hirst Would allow permit-exempt wells to impair senior water rights.

 

House bill that CELP supports:

  • 1172 Encouraging low-water landscaping practices as a drought alleviation tool.

 

House bill that CELP supports with concerns:

  • 1760 Relating to off-site mitigation for projects

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 –

 

 


January/February Edition of Washington Water Watch is Out!

Check out the latest issue of Washington Water Watch!

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.


Drought Declared in Washington

Governor Inslee’s recent declaration of drought in 24 of Washington’s 62 watersheds has triggered a flurry of activity.   By law, drought is declared when a region’s water supply is at 75% of normal (or worse) and this water deficit will cause “hardship” to water uses and users.

04172015 drought areas - dept of ecology

Washington has experienced a fairly normal year for rain, but air temperatures over the winter were nearly 5 degrees F higher than normal, making the 2014-15 winter the warmest on record.  As a result, snow fall was scant.  Mountain snowpack is like a natural reservoir.  As accumulated snow melts over the summer, it percolates into groundwater and feeds the headwaters of streams.   Water will flow in streams during summer months, even with no rain, as a result of snowpack and groundwater reserves.  This year, snowpack is substantially less than normal for the Olympic, Cascade and Northern Rockies mountains, and as a consequence, we are facing a very dry summer season in Washington.

Western US Snowpack (4-1-15)

The biggest impact will be on fisheries.  Irrigated agriculture is also taking a hit, especially in the Yakima basin.  Municipal water supplies, especially for cities with big reservoirs (e.g., Tacoma, Seattle, Everett) appear to be in good shape.

In addition to physical aspects, drought has economic and political dimensions.  The Department of Ecology convenes a Water Supply Advisory Committee (WSAC) to make recommendations about

drought activities.  The WSAC has requested a $9 million appropriation to drill emergency wells, expedite water transfers, and provide loan and grant funding to farmers.

In an attempt to alleviate instream flow depletion, Ecology and others are conducting “reverse auctions” in the Yakima, Walla Walla and Dungeness basins.

Western US Summer Streamflow Forecast (4-1-15)

Essentially the state offers to lease water rights from farmers who are willing to forego irrigation this summer.  The goal is to keep water in upper tributaries that provide habitat for endangered salmon species.

Ecology is also seeking to lease or purchase existing water rights to offset use of emergency wells in the lower Yakima Valley.  These wells were drilled in 1977 but may not be used except in drought circumstances.  Since 1977, lawsuits and a US Geological Survey study have established that virtually all groundwater in the Yakima basin feeds into the lower Yakima River.  Thus, pumping from emergency wells without mitigation would impair existing users and instream flow water rights.   The bottom line is that water in the Yakima River basin is over-allocated, and in water-short years, junior water rights (called “pro-ratables”) take a big hit.  Ecology will not authorize use of emergency wells without mitigation.

This raises public policy questions.  Should it be the responsibility of Ecology to find “mitigation water” for junior users during a drought?   Should Washington taxpayers underwrite the purchase of water for junior users?

Of particular concern, when junior users convert from annual to perennial crops, dramatically increasing the financial risk associated with drought, who bears that risk?  The water users, or the public?

The Legislature has also convened a “Joint Legislative Committee on Drought” which is meeting regularly to discuss drought actions.   Their meetings can be viewed on TVW.

The drought declaration may be extended to cover even more watersheds, and a statewide declaration is even possible.   Large Puget Sound municipalities are comfortable with full reservoirs, and do not want a drought declaration that would lead their customers to conserve (and thereby reduce revenues).   But, smaller purveyors and stream flows around the state will be hurting given the snowpack scenario.

Drought declarations can lead to much mischief in the public policy arena.  CELP will report on drought activities throughout the spring and summer months to assess how well agencies and the Legislature respond in protecting public resources, i.e., public waters and public funds.

 


Washington Water Watch – March 2015 Edition

Columbia River, Hanford Reach - no credit

Hanford Reach of Columbia River

Don’t miss our March edition of Washington Water Watch!

Click here to see the PDF version of our newsletter.

This month you’ll find articles about CELP’s recent victory in our Spokane River PCB challenge, the positive outcome of our Columbia River challenge, updates on other water issues and the Legislative session, an introduction to our new Development and Outreach Coordinator, and more.

If you aren’t already signed up to receive our monthly newsletter, sign up at the bottom of the page.


2015 Legislative Overview

Water is a hot issue in the legislature this year, and CELP is currently working on a several bills. The majority of them are focused on the Skagit River instream flow rule, some seeking repeal or amendment, others seeking productive solutions in water short areas.

In November 2014 The Washington Realtors, Building Industry Association, and Farm Bureau filed a petition with Ecology, calling for a repeal of the original Skagit River instream flow rule. CELP opposed the repeal because it was inconsistent with the 2013 Swinomish Tribal Community v. State of Washington Supreme Court decision. Instream flow rules have been an issue in Skagit County for decades. The original rule, set in place by Ecology, does not allow unmitigated new domestic wells. In 2005, Skagit Valley sued to overturn the rule, at which point Ecology adopted an amendment that created “water reserves” in tributaries. Two years ago, Swinomish Indian Tribe successfully challenged this amendment, and the original rule was reinstated.

 

The following bills CELP opposes, but they have passed out of committee and are headed for a floor vote in the Senate:

SB 5129 states that domestic water supply should be an “overriding consideration of public interest.” This bill will create a “super priority” for domestic wells, and Department of Ecology will have to allow their use, even if that means reducing water supplies for existing water rights holders and instream flows. This patchwork solution does not address the larger issues we face, including diminishing water supplies due to over-appropriation, and climate change.

SB 5136 would lead to Ecology’s repeal of the Skagit Instream Flow Rule. This undermines all the work that has been previously done to protect salmon in the Skagit River. Again, this bill is a patchwork solution, and will inhibit progress towards sustainable water allocation.

SB 5407 would allow uninterrupted use of exempt wells in Skagit Valley. The bill presumes that these domestic wells have no impact on instream flows. The current system requires new users to demonstrate that their well will not harm existing water right users. This bill would shift the burden to Ecology to prove that a single well is having a negative impact on instream flow levels, before they can limit any withdrawals. This bill also disregards the cumulative impacts unlimited withdrawals of new and existing wells may have on instream flows. CELP will work with our water allies to stop these bills.

 

There are also several bills that CELP has concerns with. They are:

SB 5965 directs Ecology to study mitigation for permit-exempt wells, including out of kind mitigation.  CELP does not oppose the study, but wants clarity that out of kind mitigation cannot serve as a bargaining chip in exchange for water withdrawals.

SB 5018 would waive the anti-degradation requirement of groundwater quality standards for aquifer storage and recovery projects.   The anti-degradation law is an important catch-all to address pollutants that are not covered by federal drinking water standards.  Also, the bill’s requirement to “protect aquatic resources” is vague and should be strengthened to ensure that all biotic communities are protected.

 

There are also a number of bills that CELP supports. These bills provide a more balanced approach to water resource allocation:

HB 1793 works within the framework of existing instream flow rules to provide property owners, located in areas of limited access to legal water withdrawals, the tools for alternative water procurement. CELP supports this bill, because it presents a balanced approach to water allocation that is beneficial for both humans and fish. Most importantly, it proposes alternative solutions in Skagit Valley, where water resources are under stress.

SB 5014 outlines best practices for water banking. Water banking has proved to be a sustainable alternative water resource for homeowners living in areas with limited water resources, including Kittitas County.  The legislature should promote this important water supply alternative.


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.