In this issue: a recap of the 2017 legislative session, an article on the Wind watershed in Southwestern Washington, news from Ecology, and info on upcoming events!
Read the July & August edition of Washington Water Watch here.
In this issue: a recap of the 2017 legislative session, an article on the Wind watershed in Southwestern Washington, news from Ecology, and info on upcoming events!
Read the July & August edition of Washington Water Watch here.
by Elan Ebeling
WRIA 29a, known as the Wind watershed area, is located in southwestern Washington along the Columbia River, southwest of Mt. Adams. Although the Wind watershed was originally paired with the White Salmon watershed and collectively classified as WRIA 29, the initial planning unit disbanded due to disagreements in 2005. Subsequently, WRIA 29 was split into two separate sub-basin WRIAs, with WRIA 29a encompassing the western half including the Wind watershed and surrounding creeks and streams, and WRIA 29b containing the eastern White Salmon sub-basin area. The WRIA 29a Wind sub-basin includes the Wind and Little White Salmon Rivers, Trout, Panther, Brush, and Rock Creeks, as well as many small tributaries to the Columbia River. These waterways contain populations of Steelhead, Coho, Chum, Chinook, trout, and Pacific lamprey, five of which are listed under the ESA as endangered or threatened.
Although the area is relatively sparsely populated (the largest population centers are the cities of Stevenson and Carson at a combined population of under 4,000), according to the Department of Ecology’s 2012 Focus on Water Availability report WRIA 29 is among the most densely farmed basins in southwestern Washington. Furthermore, expected population increases particularly in the city of Stevenson combined with growing tourism from the burgeoning urban centers of Vancouver and Portland have put a strain on the region’s water resources.
In addition to the concerns of meeting water demands of a growing population, sufficient water is also needed to protect instream resources. The 2005 Watershed Management Plan for WRIA 29a identified high water temperatures on the Wind River and Little White Salmon River and high sediment deposits throughout the basin as specific impediments to threatened salmon runs. Climate models predict reduced snowpack throughout the region leading to lower summer flows and peak flows occurring earlier in the season, which will adversely affect vital fish habitat.
Although the 2005 plan acknowledged the necessity of an instream flow rule to safeguard threatened fish runs against the impacts climate change, it stated the need for more data to be collected on stream flow levels and recommended several studies and the placement of flow gauges. Over the next decade, sufficient data were accumulated via stream flow studies for the planning unit to recommend specific numbers for instream flow rulemaking on several waterways in the basin in the group’s 2015 Detailed Implementation Plan (DIP). In addition, the DIP also proposed the creation of several reservations to meet future water needs of local communities that would have priority over instream flow rules. Due to recent Washington State water case law, however (particularly the 2013 Swinomish v. Ecology decision), a different approach may be needed. To protect instream flows, schemes for mitigation of new water use should be included in any new proposal.
The concerns of climate change and threatened fish runs are urgent, and conditions will only worsen without meaningful regulation. As a WRIA containing mid-Columbia River tributary rivers and streams, the Wind watershed is crucial for threatened Columbia River salmon and steelhead. CELP urges Ecology to take action to protect vital instream resources by beginning the rulemaking process for WRIA 29a.
If you are interested in helping to secure protections for the Wind watershed, please email CELP at email@example.com.
News Advisory – Court hearing on June 9
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.
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).
For immediate release, May 4, 2017
On May 3, the U.S. District Court Judge Salvador Mendoza Jr. issued an injunction against the federal fish hatchery at Leavenworth, WA, after ruling in January that the hatchery was unlawfully discharging pollutants to Icicle Creek and the Wenatchee River. The latest court order provides that the injunctive requirements will terminate if and when the U.S. Environmental Protection Agency (EPA) issues a pollution discharge permit to the hatchery. The federal facility, funded by the U.S. Bureau of Reclamation and operated by the U.S. Fish and Wildlife Service, has been unlawfully discharging without the required permit since 1979.
“This is an important victory for Icicle Creek,” said Dan Von Seggern, staff attorney for the Center for Environmental Law & Policy. “The Leavenworth Hatchery is dilapidated and old, with decades of deferred maintenance that needs serious upgrades. This is unacceptable under the Clean Water Act and harms the public’s interest in Icicle Creek. The court’s Order will result in state-of-the-art upgrades at the hatchery resulting in decreased water use and improved treatment. The result will be cleaner water and higher flows in the stream.”
Since 1979, the Hatchery has been operating without a valid pollution permit. Judge Mendoza’s January ruled confirmed the violation of the federal Clean Water Act. The May 3 injunction requires the hatchery to reduce the amount of phosphorus it discharges by September 1, 2019, to the amount necessary for Icicle Creek to meet water quality standards designed to support salmon and other fish. The Court’s injunction leaves open the opportunity for the Hatchery to obtain a new discharge permit, called an “NPDES” permit, from EPA, in which case that permit would set the schedule for the Hatchery to reduce its phosphorus discharges. Either way, the Hatchery will be forced to undertake long-delayed upgrades, including wastewater treatment technology to protect Icicle Creek.
Icicle Creek is a tributary to the Wenatchee River, and drains a portion of the Alpine Lakes Wilderness. The stream is home to threatened and endangered fish species, including steelhead, Chinook salmon, and bull trout. The Hatchery is located on the banks of Icicle Creek, approximately three miles from the river’s confluence with the Wenatchee River.
The Leavenworth Hatchery raises 1.2 million fish annually in a confined space, generating pollutants that are released untreated into Icicle Creek. Pollutants include disease-control chemicals, pathogens, nitrogen, phosphorus, antibiotics, chemicals used for disinfection and other fish culture purposes, residual chemical reagents, salts, and chlorinated water. The phosphorus discharge contributes to Icicle Creek and the Wenatchee River failing to meet water quality standards for dissolved oxygen and pH.
“This court decision will require the federal agency to do what it should have done long ago: invest in hatchery upgrades,” said Kurt Beardslee, executive director of Wild Fish Conservancy. “Over the past fifteen years we have worked with local citizens and representatives of state, federal, and tribal agencies to try to bring the Leavenworth Hatchery into compliance with state and federal laws to protect and restore native fish species listed under the Endangered Species Act, and to restore the integrity of the Icicle Creek ecosystem. Now the federal agency is under court order to do so.”
The Leavenworth Hatchery is part of a controversial process convened by the Washington Department of Ecology and known as the Icicle Work Group. Hatchery improvements are on the list of IWG goals, but are proposed only in exchange for diverting water from the Alpine Lakes Wilderness for municipal supply for the City of Leavenworth.
“The Court injunction holds the promise of a new chapter at the Leavenworth Fish Hatchery – in which federal officials are committed to clean water, instream flows, and producing hatchery fish,” said attorney Brian Knutsen, of Kampmeier & Knutsen, PLLC. “No longer can decades of delay in hatchery upgrades be used as a bargaining chip to raise dams and drain more water from the Alpine Lakes Wilderness.”
The Leavenworth National Fish Hatchery was constructed between 1939 and 1941 near Leavenworth, Washington, as partial mitigation for massive salmon losses that resulted from building Grand Coulee Dam.
CELP is represented by Kampmeier & Knutsen, PLLC of Portland, OR and Seattle, WA.
News Advisory – issued May 3
Saturday, May 13
Background to Revelstoke, B.C.: One River – Ethics Matter
Religious and First Nation leaders from the Upper Columbia River will lead a one-day conference on ethics, and the past and future of the Columbia River. The conference series is a multi-year undertaking based on the Columbia River Pastoral Letter issued in 2001 by the Roman Catholic Bishops of the international watershed, and tools used by hospital ethics consultation services.
The one-day river ethics conference brings together faith, indigenous and education leaders. Faith leadership include Anglican Archbishop John Privett, Roman Catholic Bishop John Corriveau, and Rev. Greg Powell of the Kootenay Presbytery. First Nation and tribal leadership include Chief Wayne Christian (Secwepemc), Sandra Luke and Marty Williams (Ktunaxa), Pauline Terbasket (Okanagan Nation Alliance), and D.R. Michel (Upper Columbia United Tribes) and Stevey Seymour (Sinixt/Arrow Lakes Band). Scholars and educators include Jeannette Armstrong (En’owkin Centre, Syilx scholar), Angus Graeme (President, Selkirk College), and Ariel McDowell (Principal of Aboriginal Education, School District 19). Click to view the full agenda and list of speakers.
This is the fourth in a conference series entitled “One River – Ethics Matter” that examines the moral dimensions of the dam-building era with a focus on First Nations (Canada) and Indian tribes (U.S.), and the river and life that depends on the river. The Columbia River Pastoral Letter, issued by Northwest Catholic bishops in 2001, provides a foundation and framework for the conference series. This series is modeled on South Africa’s Truth and Reconciliation public dialogue in the wake of apartheid. This Revelstoke conference follows three in Spokane (2014), Portland (2015), and Boise (2016). The fifth conference will be held in western Montana in 2017. (for more, see Ethics and Treaty Project).
Earlier conferences explored the profound effects of dams from Grand Coulee upstream on tribes and First Nations; how protecting flood plain settlement and development in the Portland area has come at the cost of permanently flooding river valleys and native homelands upstream; and re-licensing of Idaho Power Company’s Hells Canyon Complex of dams to provide passage for salmon now blocked from returning to the upper Snake River.
North Columbia Environmental Society, Mir Centre for Peace, Selkirk College, Okanagan College Faculty Association
Joan Craig, MD * Roman Catholic Diocese of Nelson * Archbishop John Privett, Anglican Diocese of Kootenay * Ktunaxa Nation Council * Upper Columbia United Tribes * Laurie Arnold PhD * North Columbia Environmental Society * Sierra Club BC * Yellowstone to Yukon * Evangelical Lutheran Church in America, Southwestern Washington Synod * Citizens for a Clean Columbia * Columbia Institute for Water Policy * Backcountry Hunters and Anglers, Washington State Chapter * Sierra Club, Washington State Chapter * Tom Soeldner & Linda Finney * Center for Environmental Law & Policy * Rachael & John Osborn
The March issue of Washington Water Watch features an interview with CELP’s newest board member Patrick Williams, our latest Voices for Water interview with Chairman Chief James Allan of the Coeur d’Alene Tribe, CELP’s 2016 Annual Report, and a call to action to speak up for the Similkameen River in Okanogan County.
Read the March issue of Water Watch here.
Winter Waters Celebration, March 10 – Honoring the Coeur d’Alene Tribe
When: March 10 (Friday) 6:30 p.m. – 9:30
Where: Spokane – historic Patsy Clark Mansion, 2208 W. 2nd Ave
What: Honoring our heroes – also music, desserts and other small foods, wines
Tickets: $35 per person (purchase on-line or at the door)
To help sponsor the event or for more information, contact: John Osborn MD firstname.lastname@example.org 509.939-1290
Upper Columbia United Tribes * Bishop William Sklystad * Eastern Washington-Idaho Synod, Evangelical Lutheran Church in America * Eymann Allison Hunter Jones P.S. * Linda Finney & W. Thomas Soeldner * John & Joyce Roskelley * EnviroScience * Kathy Dixon * Columbia Institute for Water Policy * Rachael & John Osborn
Honoring the Tribe
In the homeland of the Coeur d’Alene Tribe, nearly a century of hard-rock mining in the Coeur d’Alene Mining District led to release of massive mining and smelting wastes into streams and rivers. The extent of the pollution is truly staggering. There would be no cleanup — no hope for protecting Lake Coeur d’Alene and the Spokane River from mining pollution — without the Coeur d’Alene Tribe. The Tribe’s work to protect and restore their homeland is historic with enduring benefits for the Tribe and indeed for all life. We wish to thank the Tribe for their assistance in providing background information for the following summary.
Tribal World View
The Coeur d’Alene Tribe were the original land managers in the Basin. For the Tribe, all things living are interconnected. Relationship with other life is based on kinship rather than human supremacy. Resources are always to be used in a respectful and sustainable manner. Decisions include how Tribal descendants will be affected seven generations into the future.
Homeland and natural resource overview
All of these practices derived wealth for the few, jobs for some, and left a legacy of negative natural resource impacts for all.
As a result of such impacts, the Tribe decided to take action and championed some major efforts to address the many problems facing their natural resource base (the center of their culture).
In closing, the Coeur d’Alene Tribe has taken on the leadership role as steward of their homeland’s natural elements. In order to protect and restore the waters and lands, the Tribe has engage in a spectrum of efforts from litigation to cooperative agreements. The Tribe’s unwavering dedication to it stewardship responsibilities stems from the creators’ gift of their Land and surrounding homeland.
The last issue of 2016 is here! Read a preview of what to expect during the upcoming legislative session, an article by CELP’s Dan Von Seggern on the recent Hirst decision, and a summary of our December CLE.
Check out the October edition of Washington Water Watch. In this issue: updates on the Dungeness River rule challenge and the Hirst case, an article on the potential environmental impacts of Ecology’s Chehalis Basin Strategy, and details on our December 1st CLE and December 7th Olympia fundraiser!
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.