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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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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 –

 

 


Court to hear Arguments on the Legality of Water Rights to Operate Enloe Dam

 Center for Environmental Law & Policy
American Whitewater * North Cascades Conservation Council

News Advisory – April 19, 2016
Contacts:

When: Wednesday, April 20 at 9:30 a.m.

Where: Seattle – Washington State Court of Appeals, District 1; One Union Square, 600 University St.

What: Oral argument in a challenge to the Washington State Department of Ecology for issuing water rights that would nearly completely dewater a segment of the Similkameen River while burdening ratepayers with substantial costs.

Plaintiffs: Center for Environmental Law & Policy, American Whitewater, and North Cascades Conservation Council – members of the Hydropower Reform Coalition.

Defendants: Washington State Department of Ecology, Public Utility District No. 1 of Okanogan County, Washington, and Washington State Pollution Control Hearings Board

 

Enloe Dam is a cement plug blocking the free-flowing Similkameen River in north central Washington State and British Columbia. The dam has not generated power since the 1950s, with prior efforts to re-energize the dam being rejected by regulators. The local Public Utility District, Okanogan PUD, once again proposes to electrify the old Enloe Dam, almost completely dewatering an important stretch of the river including Similkameen Falls in violation of Washington water law.

Economic studies, including one by the Okanogan PUD itself, conclude that the project would result in substantial financial losses. The economic risks increase when one considers the fact that the water rights to operate the project violate a forty-year-old regulation that protects instream flows for people and fish. If Okanogan PUD were to move forward, then they could spend millions of ratepayer dollars to build a project without water to operate it. Ratepayers in the Oroville area have vigorously opposed the PUD proposal for financial and other reasons.

Despite the fact that a legally required study to assess the impacts of the Project on aesthetic and recreational resources has not been completed, the Washington State Department of Ecology (Ecology) issued a water right to the PUD to divert water from the Similkameen River. River advocates challenged the State’s decision to exploit the public’s waters for an economic loser of a project. On Wednesday, Division 1 of the Court of Appeals will hear oral arguments in the case. The attorney for the river advocates is Andrea Rodgers of the Western Environmental Law Center.

Quotes

On the PCHB (the Pollution Control Hearings Board or “Board”) correctly requiring an aesthetic analysis of dewatering a river — and then incorrectly approving water rights that would dewater the river:

“Ecology granted a water right for this project at the expense of bedrock principles of Washington water law,” said Andrea Rodgers the Western Environmental Law Center attorney representing the coalition groups. “In particular, the board ruled that it was not necessary to gather information about the aesthetic and recreational impacts of the project until after the hydro project is built. Ecology has put the cart before the horse and in doing so broke laws that protect our state’s precious water resources.”

On the importance of the Similkameen River to the people of Washington State:

“The Similkameen River is a valuable resource to the community for recreation, scenic values, and fish and wildlife. As with other rivers across the state, recognition of the importance of flows for aesthetic and recreational purposes is important to our organization. We will continue to press legal issues that protect the Similkameen River and Falls as multi-use public resource given the significance of this decision for rivers statewide,” said Thomas O’Keefe, Pacific Northwest Stewardship Director with American Whitewater.

On the statewide significance of this case:

“The water permitting process is designed to make sure that the public’s waters are allocated wisely and protected from over-exploitation. In this case, the Department of Ecology issued a permit that would remove nearly all water from this stretch of the river without ensuring that aesthetic and recreational values would be protected. The Enloe Dam appeal sends a message of statewide significance that the Department of Ecology must promote balanced use of Washington’s waterways,” said Dan Von Seggern with the Center for Environmental Law & Policy.

Links –

Economic Analysis

Appeal Court Brief

Conservationists’ Petition for Review