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CELP Joins 50 Organizations in Letter to Policymakers on Columbia River Treaty

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:

http://www.wildsalmon.org/images/stories/PDFs/Fact_Sheets/CRT.US.CA.Ltr.final.us.pdf
“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.


Upper Columbia United Tribes to be honored for at Celebrate Water for their work to restore salmon to Upper Columbia River

UCUT logo15 Tribes and 17 First Nations press to modernize Columbia River Treaty;  await decision from the U.S. State Department

On May 21 Center for Environmental Law & Policy (CELP) will honor Upper Columbia United Tribes (UCUT) with the Ralph W. Johnson Water Hero Award.  Recognizing UCUT comes at an especially pivotal time in the history of our region:  the U.S. State Department is poised to decide whether to negotiate with Canada over the future of the Columbia River.  The honoring event will be held at Ivar’s Salmon House in Seattle as part of Celebrate Water! an annual event focusing on the future of water in Washington State, hosted by CELP.

The Upper Columbia United Tribes (UCUT) is being honored with the Ralph W. Johnson Water Hero Award for their work in restoring the Upper Columbia River region, including their central role in restoring salmon above Grand Coulee Dam.  By honoring UCUT, this award also recognizes and honors all 15 tribes and 17 First Nations of the Columbia Basin for their leadership in restoring salmon and the Columbia River.  (view map of the Columbia Basin’s 15 tribes, 17 First Nations, and fish barriers)

In December 2013 federal agencies recommended to the State Department that the United States include restoring the ecosystem as a primary purpose of an updated Columbia River Treaty, along with hydropower and flood control, a feature that will make the Treaty a model of international water management. All four Northwest states, 15 Columbia Basin tribes, fishermen and environmentalists support that recommendation.

In the Upper Columbia, dams have devastated fisheries and profoundly damaged tribes and indeed the entire region.  The Upper Columbia United Tribes (UCUT) provides a common voice for the Upper Columbia River region through the collaboration of five major area tribes:  the Coeur d’Alene Tribe, the Kalispel Tribe of Indians, the Kootenai Tribe of Idaho, the Spokane Tribe of Indians, and the Confederated Tribes of the Colville Reservation. UCUT was formed to ensure a healthy future for the traditional territorial lands of Tribal ancestors and takes a proactive and collaborative approach to promoting Indian culture, fish, water, wildlife and habitat.

Celebrate Water! will be held at Ivar’s Salmon House in Seattle, WA on May 21, 2015 from 4:00-7:30pm. A one-credit Continuing Legal Education (CLE) workshop Water Rights, Land Use, Instream Flows:  Current Supreme Court Cases will be held from 4:00-5:00pm. The Celebrate Water reception will take place from 5:30-7:30pm and will include the honoring of UCUT. Tickets are $50 (reception), $30 (CLE) and $70 (CLE and reception).  More information is available at Celebrate Water!

About the Award

Ralph W. Johnson Award is given in honor of CELP’s founder, Professor Ralph W. Johnson.  Professor Johnson co-founded CELP (along with Rachael Paschal Osborn), founded Indian Law, advocated for indigenous people and justice in the salmon wars, and whose jurisprudence was foundational to the Boldt decision.   Past recipients of the award include the Swinomish Indian Tribal Community and Billy Frank Jr., on behalf of the Northwest Indian Fisheries Commission.

Links –  

Contacts –


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


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.