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.
Conservation, fishing and faith communities call for U.S and Canadian government collaboration as an essential step towards modernizing the Columbia River Treaty to protect the environmental values of this important trans-boundary river.
Fifty-one organizations and associations from the Northwest region of the United States and Canadian province of British Columbia sent a letter today to top policymakers on both sides of the border urging them to jointly develop and share critical information as an essential step to protecting and restoring the Columbia River and its watershed in advance of negotiations to modernize the 52-year old U.S.-Canada Columbia River Treaty.
Signers of this letter include leaders from conservation, commercial and recreational fishing, and faith communities. They represent millions of people in both countries. The letter is addressed to Canada’s Minister of Foreign Affairs Stephane Dion; United States Secretary of State John Kerry; and British Columbia’s Premier Christy Clark.
A copy of the letter can be downloaded here:
“Modernizing the Columbia River Treaty to meet the challenges of the 21st Century must focus on protecting and restoring the health of this important river and its watershed,” said Martin Carver of Nelson, British Columbia. Mr. Carver is among the non-governmental leaders in Canada working with those in the United States to broaden the Treaty’s current scope to include a new purpose that prioritizes the protection and restoration of the Columbia River.
The scope of the original Treaty of 1964 was limited to just two purposes: coordinated power production and flood management. The impending negotiations provide an opportunity to elevate the ecological needs of the river and address the mounting impacts of climate change.
“The organizations signing this letter represent millions of people who understand that the health of the Columbia River and the interests of communities in both nations will be best served by Treaty negotiations based on collaboration rather than competition,” stated Joseph Bogaard, executive director of the Save Our wild Salmon Coalition. “Though the Columbia River might span two countries, it is one river within its own watershed. Our two nations need to work together to manage and protect it as a single system.”
The letter states that the greatest ecological benefit will be achieved “if all stakeholders can access and use a common analytic base. The modeling process should be transparent and informed by our combined best available science.”
The coordinated development and sharing of information between the two countries has occurred before. The U.S. and Canada created an international board prior to the original Treaty negotiations to produce common technical analyses and evaluations for both nations. The letter urges policymakers in both countries to “examine this precedent for a common analytic base, and [to] update and expand it with modern tools, collaboration, and transparency.”
“The health of the Columbia River’s ecosystem was compromised from overdevelopment in the last century and now climate change in this one,” said Greg Haller, conservation director for Pacific Rivers. “A modernized Treaty must protect and restore the health of the river, its fish and wildlife and help ensure that its communities are more resilient to the intensifying effects of climate change.”
The letter cites the restoration of wetlands and floodplains, minimizing the impact of dam operations on terrestrial and aquatic ecosystems, and the reintroduction of salmon into Canada as examples of what’s needed to improve the ecology of the river. “The Canadian portion of the river was heavily impacted by the construction of dams pursuant to the 1964 Treaty” said Bob Peart, executive director of the Sierra Club of BC. “Treaty modernization offers the best chance for restoring some of the ecological values and environmental services that were lost when the dams were built and that continue to be impacted on a daily basis. The health of the river will benefit if both nations work together towards mutual environmental goals.”
The 2,000 km long Columbia River originates in the Canadian province of British Columbia before flowing south into Washington State. It has been heavily dammed primarily for power, water storage and flood management. The Treaty was first established by the United States and Canada in 1964 to coordinate power production and flood management on the Columbia River. Important provisions of the Treaty are set to expire in 2024 and a window to update or modernize the Treaty opened in September 2014. Over the past 5 years in anticipation of 2024, both nations have begun preparing for negotiations.
In this issue, you’ll find articles about Ecology’s Rural Water Supply Workgroup, the success of CELP’s December 3rd CLE event, and our most recent job opening. You will also be introduced to our new Board Chair and Vice Chair, Daryl Williams and John Roskelley, enjoy the poetry of Tina Wynecoop, and more.
Decision part of growing concern about Department of Ecology mismanaging state’s waters in face of climate change
On October 8th, the Washington State Supreme Court ruled 6-3 against Ecology’s approval of the City of Yelm’s new water right because the new right would impair existing instream flows in local streams and the Nisqually River. The Court concluded that the state agency’s decision was unlawful because Ecology improperly used a narrow exception in the water code to issue the right, and because Ecology relied on out-of-kind mitigation measures to justify issuance of the water right. The legal action brought by Sara Foster, a small farm owner in the City of Yelm, was filed in 2011 because of concerns that overpumping groundwater would adversely impact local waterways. This latest decision is set in the context of growing criticism about the Department of Ecology’s mismanagement of the state’s waters through historic over-allocation of water rights and in the face of climate change.
“The Supreme Court’s decision reaffirms the state’s responsibility to protect instream flows,” said Patrick Williams, attorney for Sara Foster. “The decision makes it clear that Ecology must abide by state water laws when approving new water rights.”
The Foster decision means that the Department of Ecology, which is responsible for managing the state’s waters, cannot issue new water rights that will permanently deplete protected flows in rivers.
“I’m thrilled with the decision because it means the water levels in streams in rivers I, and others, enjoy so much will be protected now and in the future,” said Sara Foster, plaintiff in the case.
The Foster decision reaffirms a 2013 Supreme Court decision in a case brought by the Swinomish Indian Tribal Community to protect stream flows in the Skagit River basin. In Swinomish, the Court held that Ecology could not use the narrow water code exemption permanently impair existing instream flows through water reservations for future use. Pursuant to today’s decision, Ecology cannot issue individual water rights that would impact instream flows. Together, Swinomish and Foster underscore that Ecology cannot continue to deplete river flows to meet future water demand.
“It is time for the state to look at water efficiency and conservation and water reuse for new sources of water instead of taking water from instream flows,” added Williams. “The water frontier is over.”
The Foster decision also holds that Ecology may not use non-water environmental restoration projects as a basis for issuing water rights. Ecology has issued a handful of water right decisions allowing river depletion in exchange for activities such as wetland restoration, floodplain easements, placement of large woody debris in rivers, and monetary payments.
“Ecology is increasingly relying on “out-of-kind” mitigation projects as a basis for issuing new water rights,” said Rachael Paschal Osborn, senior policy adviser for the Center for Environmental Law & Policy. “Today the Court has clarified that habitat projects or monetary payments cannot substitute for water. This is a very good decision for Washington’s over-allocated and much-depleted rivers and aquifers.”
The Center for Environmental Law & Policy provided support to Sara Foster through its Water Rights 9-1-1 program helping citizens struggling with water resource issues, and filed a “friend of the court” brief in the case.
Check out the September edition of our newsletter, Washington Water Watch. You will find an article on our recent legal action to stop pollution from the Leavenworth Hatchery, Ecology’s new Reclaimed Water Rule, an update on our H2KNOW campaign, and information about a conference we are sponsoring about modernizing the Columbia River Treaty, “One River. Ethics Matter”. You will also find information about CELP’s upcoming events.
For 36 years, federal hatchery has been illegally polluting Icicle Creek
Tuesday September 29, 2015 – Today, the Center for Environmental Law & Policy (CELP) and Wild Fish Conservancy announced they filed legal action to compel the U.S. Fish & Wildlife Service (FWS) to clean-up the Leavenworth National Fish Hatchery now polluting Icicle Creek.
FWS discharges a wide variety of pollutants into Icicle Creek from the federal hatchery located near Leavenworth, Washington, without a National Pollutant Discharge Elimination System (NPDES) permit. An NPDES permit is required by the Federal Clean Water Act (CWA) and would place limits on pollutant discharges. The Hatchery’s permit expired in 1979, and for the past thirty-six years FWS has operated the hatchery in violation of the CWA. Despite repeated requests over many years to update the Hatchery’s operations, including a 60-day notice filed in July, federal officials have continued to operate the facility without obtaining a new permit.
Pollutants released from the Hatchery to Icicle Creek 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 excess phosphorus discharged by the Hatchery has caused violations of the applicable water quality criterion for pH in lower Icicle Creek. This phosphorus loading also contributes to violations of water quality standards in the Wenatchee River.
“The Clean Water Act is the main mechanism through which pollution of our waters is prevented, and the Hatchery is obligated to apply for a permit and to operate according to its conditions,” said Dan Von Seggern, staff attorney for CELP. “Filing a lawsuit is a last resort. However, a great deal of effort by many groups and individuals to get the Hatchery to obey the law has been unsuccessful. This litigation is aimed at ensuring that the federal agency carries out its work to augment salmon runs without harming Icicle Creek.”
“By not having a current NPDES permit, the Leavenworth National Fish Hatchery has been in violation of the Clean Water Act for thirty five years,” 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 get the Leavenworth Hatchery to comply with state and federal law to protect and restore native fish species listed under the Endangered Species Act and to restore the integrity of the Icicle Creek ecosystem. It is discouraging to realize that yet again the Hatchery blatantly disregards its legal obligations and the needs of the Icicle Creek ecosystem. The saddest part of this is the public is unknowingly paying for it.”
The Leavenworth National Hatchery was constructed between 1939 and 1941 near Leavenworth, Washington, and is located on the banks of Icicle Creek approximately three miles from the river’s confluence with the Wenatchee River. The federal hatchery has a long history of violations of federal environmental laws. Despite repeated attempts, including litigation, the federal facility continues to be in violation of federal laws, notably the Clean Water Act and Endangered Species Act.
Wild Fish Conservancy and CELP are represented by Kampmeier & Knutsen, PLLC of Portland, OR.
- Dan Von Seggern, Center for Environmental Law & Policy, 206.829-8299
- Contact: Kurt Beardslee, Wild Fish Conservancy, 425-788-1167
- Brian Knutsen, Kampmeier & Knutsen, PLLC, 503-841-6515
Save the Date: Saturday October 24 at the University of Portland
One month after Pope Francis speaks to Congress, we invite you to join us at the University of Portland’s Buckley Center Auditorium on Saturday, October 24 from 8 am – 4 pm, for a discussion about ethics and the future of the Columbia River. This event is free and open to the public, and lunch will be provided.
Modeled on South Africa’s “Truth and Reconciliation” public meetings, “One River, Ethics Matter” is a conference series exploring the moral dimensions of the impacts of the dam-building era with a focus on tribes, First Nations and the river itself. Gonzaga University hosted the first conference from which issued the Declaration on Ethics & Modernizing the Columbia River Treaty signed by religious and indigenous leaders and many others. Please join us for the second of these conferences with a focus on flood-risk management, climate change, justice, and stewardship. We’ll explore measures to correct historic injustice — including less environmentally damaging options to protect Portland from floods and restoring salmon to ancestral spawning grounds. Support is growing to expand the treaty’s original purposes (flood risk management and hydropower) by adding a third purpose: “ecosystem function” to restore health to the Columbia River, including the return of salmon to ancestral spawning waters.
The Portland conference will open with Bishop William Skylstad, the force behind the Columbia River Pastoral Letter, and Leotis McCormack (Nez Perce Tribe and Columbia River Inter-Tribal Fish Commission) speaking on indigenous people, salmon, and the river. Other speakers will include Virgil Seymour who will describe the fate of the Sinixt Nation located in the Upper Columbia and declared “extinct” by Canada in 1956 during Treaty negotiations with the United States. Crystal Spicer will describe the valiant effort by her father to save their family home and farm while 2,300 people were forced by the B.C. government to relocated. The conference will conclude with a discussion of the current opportunities to modernize the Columbia River Treaty that governs management of the River, while underscoring the need to revisit flood risk management.
International water conflicts are a growing global risk in the face of climate change. “One River, Ethics Matter” intends to use the Columbia River Pastoral Letter and the tools used by hospital ethics committees to help establish a water ethic as foundational for international decisions on water.
RSVP contact: Belgin Inan email@example.com 503.943.8342
RSVP deadline: October 16
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History of the Creation of the Columbia River Treaty
The 1948 flooding of the city of Vanport, outside of Portland, helped launch the creation of the Columbia River Treaty. To provide housing for Kaiser shipyard workers and their families, the Columbia River was diked and public housing built on the floodplain in 1942. Adjacent to Portland near the confluence of the Columbia and Willamette Rivers, Vanport was at one point Oregon’s second largest city. In 1948 during a flood event, the dikes gave way. The flooding of Vanport was the Hurricane Katrina story of its day. Fifteen people died, and the city was destroyed.
But the story did not end there. Vanport was used to justify the need for more flood protection – resulting in the damming and permanent flooding of river valleys in interior British Columbia and Montana – the “Treaty dams.” These dams came at the end of the dam-building era in the Columbia that transformed the River into a machine with devastating consequences for salmon, tribes and First Nations, and the river itself. Today the great salmon gathering places of Celilo Falls and Kettle Falls are underwater, flooded by reservoirs.
Thanks to Our Conference Sponsors
McNerney-Hanson Chair in Ethics * Columbia River Inter-Tribal Fish Commission * Columbia Basin Revitalization Coalition * Environmental Studies Department, University of Portland * Okanagan Nation Alliance * Upper Columbia United Tribes * Ecumenical Ministries of Oregon * Upper Snake River Tribes Foundation * Pacific Rivers Council * WaterWatch of Oregon * Citizens for a Clean Columbia * Columbia Riverkeeper * Salmo Watershed Streamkeepers Society * Sweo Chair in Engineering * Center for Environmental Law & Policy * The Roskelley Family * Molter Chair in Science * Save Our wild Salmon * Garaventa Center for Catholic Intellectual Life and American Culture * Columbia Institute for Water Policy * Loo Wit Group, Sierra Club * Backcountry Hunters and Anglers, Washington State Chapter * ATRIA * Francis Maltby * Oregon Chapter, Sierra Club * Oregon Synod, Evangelical Lutheran Church in America
Conference Links –
In this month’s newsletter, you’ll find an update on Washington’s drought, an article about the H2KNOW campaign currently going on in Spokane, a profile of Frank James, one of CELP’s board members, and more water news.
Check it out here.