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Washington Water Watch: May 2017 Edition

In this issue, read about our upcoming Celebrate Water event and a bio of the Ralph Johnson awardee, John Osborn, meet our summer legal intern, learn about our latest victory on Icicle Creek, a recap on the Revelstoke, B.C. One River – Ethics Matter conference, and enjoy an update on the culvert case!

Read the May issue of Water Watch here.


Court Upholds Dungeness Instream Flow Rule that protects River and Fish

News Release
October 25, 2016

 

Contact:

Dan Von Seggern (Center for Environmental Law & Policy)
206.829-8299
dvonseggern@celp.org


 

Court Upholds Dungeness Instream Flow Rule that protects river and fish!

Seattle, WA – On Friday, October 21, 2016, Thurston County Superior Court Judge Gary Tabor upheld the Instream Flow Rule for the Dungeness River basin, denying a challenge from a group of property owners and developers.  The Center for Environmental Law and Policy (CELP) intervened in this matter to defend the Rule, working with the Department of Ecology.  CELP Staff Attorney Dan Von Seggern argued the case along with Ecology’s attorneys.  After the decision, he stated:  “This is a win for the environment and for water management in Washington.  The Dungeness Rule strikes a balance by protecting streamflows, fish, and senior water users, while still providing water for responsible development.  CELP is pleased with Judge Tabor’s decision and hope that this Rule will provide a guide to protecting other rivers in our state.”

In upholding the Rule, Judge Tabor held that the Rule was not unlawful and that Ecology did not exceed its authority when it adopted the Rule.  He also reaffirmed that permit-exempt wells are subject to the “first-in-time” system of water appropriations used in Washington.

The Dungeness River is home to steelhead, bull trout, and four salmon species.  Most of these fish are listed as “Threatened” under the Endangered Species Act.  Low river flows, particularly in summer and early fall, block upstream migration of spawning salmon and risk causing extinction of these fish.  Historically, much of the River’s flow has been diverted for irrigation, although irrigators have agreed to limit withdrawals to no more than one-half of the river’s summer flow.  Uncontrolled development using private (“permit-exempt”) wells further depleted streamflows and added to the pressure on fish populations. The Dungeness Rule protects instream flows that are needed to support salmon populations and other instream values, while allowing new residential development through mitigated use of water from permit-exempt wells.

The Dungeness watershed is in the rain shadow of the Olympic Mountains and is unique in the Northwest as the only coastal watershed that is dry enough to require irrigation for agricultural crops.  The River is relatively short, flowing 32 miles from the Olympic Mountains to the Strait.  It is used by chinook, coho, chum, and pink salmon as well as steelhead, cutthroat, and bull trout.  All salmon stocks are depressed relative to historic levels, and chinook, chum salmon and bull trout are listed as Threatened under the ESA.  Insufficient stream flow has been identified as a key cause of reduced fish levels.

The Dungeness Rule was developed over a 20-year period through a collaborative process that included state, local, and Tribal governments, property owners, environmental groups, and water users. “This rule is an example of how rules can be set to make sure water resources in the rivers and streams are protected,” said Trish Rolfe, CELP’s Executive Director.

Water for development is provided through a water bank, which ensures that streamflows are not depleted by water for development.  Amanda Cronin of Washington Water Trust explains that the Dungeness Water Exchange “provides an efficient one-stop shop for individual home builders in the Dungeness Valley.  Eligible homebuilders simply begin the building permit process at the County and then submit a mitigation application and one-time payment to the Exchange.”

Judge Tabor ruled from the bench and a written decision is expected in the coming weeks. The case is Bassett et al. v. Ecology, Thurston County case No. 14-2-02466-2.

Dungeness6 - Copy 800px

Dungeness River © Steve Farquhar

 

 

 

 

 

 

 

 

 

 

 

 

 


Columbia River flows to be protected

Dept of Ecology responds to lawsuit, re-issues Trios/Easterday water right with river flow protections

Seattle – Today conservationists announced they will not appeal a revised water right issued by Washington Department of Ecology (Ecology) to Trios Health/Easterday Farms after Ecology amended the water right to protect Columbia River flows.   The earlier legal challenge of the water right focused on Ecology’s practice of issuing new water rights that deplete rivers by using “out-of-kind mitigation.”

“We are pleased that Ecology has abandoned ‘out-of-kind’ mitigation for this water right,” said Rachael Paschal Osborn, senior policy analyst for the Center for Environmental Law & Policy (CELP).  “Out-of-kind mitigation is illegal.  It threatens to de-water rivers statewide.”

The water right will irrigate 2000-3000 acres of land owned by Easterday Farms.  Kennewick General Hospital (now Trios Health) received title to the lands as a gift in 1980, but the lands lacked irrigation water.  Trios sold the land to Easterday Farms, contingent upon receiving a water right from the state.

In 2013, Ecology issued the water right, but without the instream flow protections routinely required for the Columbia River.  Rather than providing “bucket-for-bucket” mitigation to protect Columbia River flows, Ecology instead required a $6 million payment by Trios Health/Easterday to pay for habitat improvements in the Yakima and other watersheds.  The Okanogan Wilderness League and CELP appealed (see “background” section below), and the Pollution Control Hearings Board directed that the matter be sent to trial, requiring Ecology to prove that out-of-kind mitigation would actually offset the impacts to Columbia River flows.  Rather than going to trial, Ecology issued a new water right with instream flow and in-kind mitigation requirements.

“Rivers in Washington State, including the Columbia River, are already in trouble from too many water rights and withdrawals,” said Osborn.  “An honest appraisal of out-of-kind mitigation would show that habitat projects, whatever their merit, still fail to protect instream values, including fish, navigation, recreation, and scenic beauty.”

The new 2015 water right is conditioned on the Columbia River instream flow rule.  In addition, the $6 million to be paid by Easterday Farms will be used to purchase and retire existing water rights to directly offset impacts.

“It is not appropriate to exchange out-of-kind mitigation for water.  You can anchor a tree to the bottom of the river, but it won’t help if the river is dry,” added Osborn.  “If Ecology issues similar water rights in the future, CELP will have no choice to but to challenge.”

Background

The OWL/CELP 2013 appeal of the Kennewick Hospital/Trios/Easterday water right was based on the following issues:

– The water right would deplete flows in the impacted stretch of the Columbia River, violating the state’s own instream flow rule adopted to protect salmon migration.

– The mitigation projects generally would have had a short life-span, but the removal of water from the Columbia River would be perpetual and unending.

– The out-of-kind mitigation projects in the original water right would have been completed anyway, funded through federal and state programs to recover salmon.  This has turned out to be true – most of the one dozen habitat projects have been constructed.

– Washington water law does not authorize the state’s water agency to give away state waters in exchange for money or non-water mitigation.  There is growing public concern about financial mismanagement within the Department of Ecology, especially relating to the Office of the Columbia River that coordinated the Trios/Easterday water right.

CELP has worked to protect Columbia River flows for the past two decades.  In 2004 the National Academy of Sciences published its analysis on Columbia River flows, warning Washington State that water rights, water diversions for irrigated agriculture, flow adjustment for hydropower generation, and warming water temperatures from climate change threaten the survival of salmon and other fish and wildlife values.

Links to more background information:

The Unkindest Mitigation – how Ecology’s new water impairment ideas will hurt rivers and fish

CELP, Columbia River Vision, (Nov. 2000)

National Academies of Science, Managing the Columbia River:  Instream Flows, Water Withdrawals, and Salmon Survival


CELP Weighs In On “Waters of the U.S.”

The University of Washington Law School has a new environmental law resource – the Regulatory Environmental Law & Policy or UW RELP Clinic, and CELP is one of its first clients.  On November 14, with the assistance of RELP students and professors, CELP submitted detailed comments on the U.S. Environmental Protection Agency’s proposed rule defining “waters of the United States” for Clean Water Act jurisdictional purposes.

Clean Water Act permits and other activities apply to the waters of the U.S. – a term that EPA has interpreted (based on Supreme Court decisions) to include waters used by migratory birds and wetlands not connected to other water bodies.   But, court decisions in 2001 and 2006 cast doubt on the scope of Clean Water Act jurisdiction, creating confusion about the extent of federal regulatory authority.

In response, EPA proposed the “waters of the U.S.” or WOTUS rule.  The rule provides more certainty as to when federal agencies can regulate.  But it also contains worrisome exemptions, excluding certain impoundments and tributaries from CWA jurisdiction.  Wholesale exemption of “ditches, swales and gullies” and groundwater are not based on sound science.

CELP’s comment letter focuses on the exclusion of groundwater from the CWA ambit.  In Washington, we integrate management of ground and surface waters where hydrologic science indicates the two are connected.  EPA’s definition fails to recognize that pollution of groundwater can cause pollution of surface waters (think Hanford and the Columbia River for example) and that courts have applied the Clean Water Act to groundwater that is hydraulically connected to surface waters.

CELP also endorsed the WOTUS comments prepared by expert water lawyer Janette Brimmer of Earthjustice, who represents CELP in other matters.

CELP thanks the RELP students and Professors Wildermuth and Rodgers for their outstanding research relating to the special concern of groundwater connectivity and protection under the Clean Water Act.


Skagit River protections threatened by Rule repeal proposal

On November 20, 2014, the Building Industry Association of Washington (BIAW), realtors and farm bureau filed a petition with the Washington Department of Ecology asking the agency to repeal the Skagit River instream flow rule.  The Center for Environmental Law & Policy (CELP) opposes the petition as it is inconsistent with recent Supreme Court decision and Washington case law.

“The rule petition is a new prong in the wholesale attack on Washington’s rivers that has been brought by developers for the past several years,” said Rachael Paschal Osborn, interim executive director of the Center for Environmental Law & Policy, “This proposal is inconsistent with state law and last year’s court decision in Swinomish Tribal Community v. State of Washington.”

The Skagit River instream flow rule has been the subject of controversy and court battles for more than a decade.  Ecology’s original rule does not allow for unmitigated new domestic wells. Skagit County sued to overturn that rule, causing Ecology to adopt an amendment that created “water reserves” in tributaries to the detriment of river flows.  One year ago, the Supreme Court held that rule to be invalid as violating state instream flow laws, causing reinstatement of the original rule.

BIAW’s petition to repeal the original rule incorrectly argues that the 2013 Supreme Court decision is inapplicable, and further ignores other court decisions of the last decade that have interpreted instream flow and domestic well laws.   Among other flaws in their arguments, the BIAW fails to recognize the physical impact of new wells on small streams, and that the state is obligated to provide water for all new development, regardless of whether water is available.

“Water scarcity is a big problem in Skagit County and throughout Washington state due to over-allocation of water rights and now, climate change,” said Osborn.   “Developers, local governments, and state agencies all must recognize that new water allocation is harmful unless fully mitigated.”

Solutions for Washington State’s water scarcity problems are provided “Proposed Water Management Strategies to Protect Instream Flows and Provide Water for Rural Development.”

Link –

 


2014 Ralph W. Johnson Award

CELP is pleased to announce that the recipient of our 2014 Ralph W. Johnson Award is Ann Aagaard. Please join us as we present this award at our annual Celebrate Water event on June 25, 2014 at Ivar’s Salmon House in Seattle, WA. Read on to learn more about Ann’s many accomplishments, penned by her husband, Knut Aagaard. 

For over 40 years Ann Aagaard has been a faithful and wise steward of our state waters and land, and of our communities, whole-heartedly committed to good government as the means by which public stewardship is exercised.  In that good work she has been joined by very many dedicated people.

Ann Aagaard

Ann Aagaard, 2014 Recipient of the Ralph W. Johnson Water Hero Award. Photo credit Andrea Perry.

Ann has been deeply involved with the League of Women Voters on state-wide issues of shoreline and natural resource management; on the Washington State Ecological Commission dealing with the consequences of proposed toxic waste incineration in Lind, of excessive water demands from resort development in the Methow, of disturbances from port development in Whatcom County, and with the review of all proposed Department of Ecology regulations; on King County’s Boundary Review Board, Agricultural Task Force, and Growth Management Task Force; on County Executive Randy Revelle’s Executive Advisory Committee; on the Department of Ecology’s SEPA Advisory Committee, Shorelines Review Task Force, and others; and on the Department of Agriculture’s Forest Research Advisory Council.  Not least, acting simply as a citizen she has repeatedly called Bothell, King County, the Department of Ecology, the Wenatchee National Forest, and other powers into public accountability.  She successfully challenged the logging industry and the U.S. Forest Service to protect rare and endangered plants in the Wenatchee Mountains.  She taught biology at Cleveland and Roosevelt high schools, Sunday School and confirmation classes in her home church, was Campfire Girls leader, PTSA Legislative Chair, and president of Friends of Saint Edwards State Park.  The list is long and diverse.

Her informed and principled engagement includes a number of landmark events: the 1978 Washington Supreme Court decision in S.A.V.E. vs. City of Bothell which broadly defined legal standing for environmental advocates; the state-wide Shoreline Master Program Guidelines negotiated with the Department of Ecology in 2003; and perhaps most striking, the remarkable confluence of events in King and Snohomish counties that extended over three decades and resulted in the North Creek Valley being not the site of a shopping center, but rather of a nationally recognized 58 acre wetland restoration abutting salmon-bearing North Creek and serving a core teaching function at the adjacent hillside campus of the University of Washington Bothell and Cascadia Community College.  The North Creek events tell a remarkable story in land use planning and execution, intricate and illuminating, a story that would make a wonderful dissertation on land use.

Ann’s commitment to good stewardship has been remarkably broad, intelligent, and sustained, and utterly unselfish as she has given lavishly of herself to people and causes beyond counting.

Join CELP in honoring Ann at Celebrate Water on June 25!


The CELP Washington Water Leadership Award

Senator Karen Fraser

Senator Karen Fraser. Photo from her website: http://sdc.wastateleg.org/fraser/biography/

CELP’s Washington Water Leadership Award honors individuals and organizations who publicly advocate for sustainable water resource stewardship in Washington and the Pacific Northwest.

This year we will be giving the inaugural Washington Water Leadership Award to Senator Karen Fraser. Senator Fraser represents Washington State’s 22nd Legislative District, the State Capitol area, and currently chairs the Senate Democratic Caucus.  She has long been a champion of responsible water policy, and has been a vigorous advocate throughout her elective office career.  She has spoken out in the State Legislature, in county and city government, in regional and national organizations, and at international forums. She also serves as Adjunct Faculty in the Master of Public Administration Program at The Evergreen State College where she includes an introduction to the intergovernmental complexities of water policy in her classes.

We will honor Senator Fraser with the award at Celebrate Water on June 25, 2014. We hope to see you there!


CLE: Fish, Water, and Health: Water Quality Standards in Washington

Continuing Legal Education (1.0 Credits)

Professor Catherine O’Neill Seattle University School of Law

June 25, 2014 from 4:00-5:00pm at Ivar’s Salmon House

Click here for registration information.

This event takes place in conjunction with CELP’s Annual Event, Celebrate Water. You can attend just the CLE or BOTH! 

Fish, Water, and Health: Water Quality Standards in Washington

Eating fish is the primary way that humans are exposed to PCBs, mercury, and many other toxic pollutants. We know these chemicals cause cancer, permanent neurological damage, and other harms. Yet fish, if they aren’t contaminated, are an excellent source of protein, omega fatty acids, and other nutrients. Doctors would like to see people eat more, not less, of this healthful food. So the question becomes: how much fish can we safely consume? Everyone knows that Washington’s current fish consumption standard is unreasonably low, but the state has been reluctant to adopt a more protective standard, like that of Oregon, because a more protective standard will require more stringent pollution and clean-up standards for Washington’s waterways—standards that industry asserts are unachievable.

Professor Catherine O’Neill of Seattle University School of Law will provide new insights into the legal and scientific complexities underpinning this hot button policy issue. Professor O’Neill has written extensively on the legal issues underpinning this important policy decision that implicates civil rights, environmental justice, human health and natural resource protection, including: Fishable Waters (American Indian Law Journal, 2013); No Mud Pies: Risk Avoidance as Risk Regulation (Vermont Law Review, 2007); Mercury, Risk, and Justice (Environmental Law Reporter, 2004); and Variable Justice: Environmental Standards, Contaminated Fish, and “Acceptable” Risk to Native Peoples (Stanford Environmental Law Journal, 2000).

Read Professor O’Neill’s recent OpEd with Frank James on fish consumption in The Seattle Times here.

 

Biography of Catherine O’Neill

Professor O’Neill was a Ford Foundation Graduate Fellow at Harvard Law School. She came to the Northwest in 1992 as an environmental planner and air toxics coordinator for the Washington State Department of Ecology. From 1994 to1997, she was a Lecturer at the University of Washington School of Law. From 1997 to 2001, Professor O’Neill was Assistant, then Associate Professor at the University of Arizona College of Law. She is a Professor at Seattle University School of Law and is a Faculty Fellow with the Law School’s Center for Indian Law & Policy.

Professor O’Neill’s research focuses on issues of justice in environmental law and policy; in particular, her work considers the effects of contamination and depletion of fish and other resources relied upon by tribes and their members, communities of color and low-income communities. She has worked with the National Environmental Justice Advisory Council on its Fish Consumption Report; with various tribes in the Pacific Northwest and the Great Lakes on issues of contaminated fish and waters; and with environmental justice groups in the Southwest on air and water pollution issues. Professor O’Neill has testified before Congress on regulations governing mercury emissions from coal-fired power plants. She has also served as a pro bono consultant to the attorneys for the National Congress of American Indians and other tribes in litigation challenging these mercury regulations. Professor O’Neill is a Member Scholar with the Center for Progressive Reform.


From the Docket

CELP works in many ways—including in the courts.  We have recently put a lot of time into some important cases to protect Washington’s waters.  Here is a quick update:

 

CELP, American Whitewater, Columbia River Bioregional Educational Project, and North Cascades Conservation Council v. Department of Ecology and Okanogan PUD: Enloe Dam Round 2: The appeal of  Okanogan PUD’s water right

Last summer, CELP and its allies won an important victory for the Clean Water Act and instream flows in Washington State.  The Pollution Control Hearings Board (PCHB) required Ecology to do an aesthetic flow study and set aesthetic flows for Similkameen Falls if and when the Enloe hydroelectric project in Okanogan County becomes operational.  However, shortly after the decision came down, Ecology issued a Report of Examination recommending that Okanogan PUD, which owns the project, be granted a permanent water right that incorporated the very minimum flows the PCHB had rejected.  The Report gave a nod to the PCHB decision, stating that the flows should change after the fact if the aesthetic flow study demonstrated that higher flows were required.  But it is far from clear whether this maneuver by Ecology is legal.

Water rights, once granted and perfected, last forever unless relinquished. And what is odd here is that the Legislature created a specific mechanism that fits perfectly here: the preliminary permit.  The preliminary permit would allow the PUD to build the project, undertake the study, and then, and only then, would Ecology set the appropriate aesthetic flow for Enloe Dam.

Ecology’s ROE recommended a procedure that simply may not be legal. We had no choice but to protect the PCHB decision requiring aesthetic flows and to sue.

Andrea Rodgers Harris and Kristen Larsen are litigating the case (along with Suzanne Skinner). It should be determined in the next few months on summary judgment (so no trial will be required). We will keep you posted.

 

Sierra Club & CELP v. USEPA: PCB Clean Up Plan for the Spokane River 

In 2011, CELP and the Sierra Club filed suit to compel EPA to create a clean-up plan for the Spokane River to rid it of PCBs.  Federal court cases can take a long time.  This month, Richard Smith of Smith and Lowney, our attorney, filed the last brief in our case.  We contend that EPA has a duty to take over Ecology’s aborted clean-up process (called a Total Maximum Daily Load process) and create a pollution plan for the Spokane River.  We are lucky to have the Spokane Tribe as an intervener in this case.  The Tribe’s case asserts that the federal government is failing in its trust duties to protect the Spokane River, and the fish upon which the Tribe depend.

 

OWL and CELP v. Kennewick Hospital:  Columbia River Water Right Appeal

The Columbia River is a heartbreaker.  Back in 2006, the National Academy of Sciences clearly stated that no further water should come out of the river—any new water rights would further imperil the river’s seven species of endangered or threatened salmonids.  The Department of Ecology conscientiously issued a moratorium on new water rights.  That lasted until the Legislature effectively repealed it and overrode the minimum instream flow rules it had adopted for the Columbia.

Ecology then began issuing new water rights even though no science supported the agency’s actions.  Indeed, climate change science makes it clear that over time that water shortages in the river will only become more severe.

Ecology issued a big, really big, new water right to Kennewick General Hospital in September, 2013.  A water right to a hospital?  Yes.  The Hospital also owns land—it intends to sell the land with the water right to irrigate it to Easterday Farms (long time CELP friends will remember Easterday).

On behalf of the Okanagan Wilderness League, Rachael Osborn, Patrick Williams, and Dave Monthie filed an appeal to the PCHB of the Hospital’s water right decision  for failing to make the permit contingent on instream flows, as well as improperly relying on “out of kind” mitigation (in other words mitigating a loss of water from the Columbia with money, and land or fish improvement projects on tributaries).

CELP has intervened in the PCHB case.  We are lucky that Janette Brimmer of Earthjustice jumped into the case and is now lead counsel for both OWL and CELP.  Once again the case looks like it will be decided without trial on summary judgment.

 

Sara Foster v. Yelm: Challenge to Out-of-kind Mitigation in a Permit

Dave Monthie, CELP Board Member extraordinaire, filed a great friend-of-the-court brief (or amicus) last week on behalf of CELP and the Carnegie Group in the Foster case, now pending in Thurston County Superior Court.  This case challenges Ecology’s reliance on so-called “out of kind” mitigation to compensate for admitted damage to instream flows from new water rights.  What does “out of kind” mean?  Well… habitat improvements, money,…anything but real water droplets at the time and place needed to offset the projected impact to already nominal instream flows.

The PCHB upheld Ecology’s issuance of the water right.  Foster appealed to Thurston County Superior Court.  Just last week, the Court granted CELP and Carnegie’s request to submit their amicus brief.  The appeal hearing is currently scheduled for May 9th.

 

We cannot begin to thank the dedicated attorneys (named above in bold) who work so hard for Washington’s waters.


Rachael P. Osborn knocks one out of the box: Cornelius v. WSU

On May 23, the Washington Supreme Court heard oral arguments in Cornelius et al v. Washington Dept of Ecology et al, known by many as the “Washington State University golf course case.”  Rachael Paschal Osborn represents the appellants: Scotty Cornelius, the Sierra Club, and the Palouse Water Conservation Network.  This case is complicated with many important issues but a key one is whether Ecology is correct in allowing old water rights that were never called “municipal” to be treated as “municipal” under fairly recent Municipal Water Law statute.  Ecology’s expansive interpretation of “municipal right”  means that Washington State could revive, long unused water rights,  and put part of those rights to a brand new golf course in the middle of the Palouse.  CELP and other community groups filed a “friend of the court” brief as did several Tribes in support of the Cornelius plaintiffs.

Rachael did a fantastic job arguing the case in front of the nine Supreme Court justices. You can rehear the entire argument (about 20 minutes) here  or  here.

We expect the Supreme Court will issue its decision in 6-8 months.