Summer is coming! This month’s issue of Water Watch features information on our upcoming Celebrate Water event, an article on our letter to Governor Inslee about restoring higher flow requirements on the Spokane River, a “Love Letter to a River” by CELP member Pat Sumption, and an introduction to CELP’s newest board member, Jill F. Johnson.
CELP, other river advocacy groups provide basic information missing from agency’s flow proposal
On November 7, CELP and other river advocates filed nearly 2,000 comments and released Spokane River studies criticizing the Dept. of Ecology’s proposed rule for the Spokane River. The Ecology proposal would set instream flows, including summertime low flows at 850 cubic feet per second (cfs). Spokane River flows exceed this number for most of the summer every year, but all water above 850 cfs will eventually be taken by Washington and Idaho for out-of-stream water rights under this proposal.
In proposing such extreme low flows, the Department of Ecology ignored statutory requirements to protect recreational and navigational values of the Spokane River. Preliminary findings from an American Whitewater survey, asking Spokane River boaters about their flow preferences, show that all boaters prefer flows higher than 1000 cfs and most prefer flows in the range of 5000 cfs. Flows less than 1000 cfs are considered unfavorable to boaters and can cause damage to some craft. Numerous boating groups, individual paddlers and whitewater-based businesses commented on the inadequacy of the proposed flows to protect recreational use of the river.
Ecology also failed to assess scenic values of the Spokane River as it flows through the gorge, prompting river advocates to undertake their own photographic study. CELP’s atlas of 37 key observation points of the Spokane River’s downriver reach, inventorying the reach between the Monroe Street bridge in downtown Spokane and Nine Mile reservoir, documents five different flows ranging from 2,800 to 1,000 cfs. CELP also submitted a memo from Confluence Research & Consulting, a firm that provides training to Ecology staff, describing methods to conduct aesthetic flow studies.
Ecology also failed to consider the interstate water supply ramifications of its proposed rule. Since 2002, Idaho has issued 901 new water rights from the Rathdrum Aquifer, which feeds the Spokane River in Washington. CELP synthesized the Idaho database and provided an “Idaho Water Rights Report” with its comments.
Multiple businesses, organizations, and individuals who would be harmed by the proposed low flows submitted comments, altogether about 2,000 comments. In addition to recreation, aesthetic and interstate issues, commenters questioned the impact of extreme low flows on redband fisheries and water quality, and noted that Ecology failed to consider needs related to restoration of anadromous fish to the Spokane River. The draft rule also failed to consider the economic impact of its proposal on small businesses that rely on a healthy Spokane River, and did not consider climate change impacts, despite an executive order that requires climate change analysis as part of all state agency decisions.
CELP has been involved with Spokane River flow advocacy since 1999, serving on the WRIA 55/57 watershed planning unit and its instream flow subcommittee through 2012. Watershed planning failed to achieve consensus and, per statute, the flow setting decision then transferred to the Departments of Ecology and Fish & Wildlife. Ecology has erroneously suggested in public settings that the extreme low flows proposed in the rule were a product of the watershed planning process. In private conversations, agency staff admit the proposal is a “split the baby decision” intended to pacify Spokane basin water users.
In 2008, CELP challenged the instream flows established for the Spokane Falls in Avista Corp.’s hydropower license, based on failure to protect aesthetic flows. That appeal resulted in a settlement restoring water to the Upper and Lower Spokane Falls 24/7/365.
Ecology may adopt the draft Spokane River rule as proposed, or could return the flow proposal to draft status and re-evaluate the need for higher flows to preserve public values.
By Bruce Wishart, CELP’s Government Affairs Specialist
The 2014 session is now well behind us and it’s time to review what progress was made on water issues in Olympia this year. Some political observers have described the 2014 legislative session as one of the least productive sessions on record. Strong differences between the House and Senate, combined with the fact that this was a “short” or 60 day session (and an election year), made it difficult for agreement to be reached on most topics. Nevertheless, legislators engaged in a vigorous debate on lots of issues, including water resources and water quality issues. CELP, working together with tribes and other environmental groups, helped lead efforts this session to defeat a number of bills that would have seriously impacted our waters.
While there were fewer water resources related bills introduced than we have seen in subsequent years, the heated debate over rural development and exempt wells continued. Local governments, agricultural interests, and developers all supported legislation offered in the House (HB 2288) which would have stripped away authority from the Growth Hearings Board to oversee decisions by local government to permit rural development in areas where water supplies were scarce. This bill followed in the wake of the Board’s decision in Hirst v. Whatcom County, which affirmed and built upon prior court decisions holding that local governments have an obligation to ensure that water is legally available for new development before approving comprehensive plans or permitting new projects. Despite the Growth Management Act’s multiple directives that counties determine water availability before approving land use development, the proponents of HB 2288 argued that the Hearings Board had overstepped its bounds. CELP and tribal representatives opposed the bill and, thankfully, it did not advance.
In the Senate, Senator Honeyford (R-Yakima) introduced SB 6467, which would have overturned a recent Washington Supreme Court decision, Swinomish Indian Tribal Community v. Ecology, which held that Ecology improperly authorized exempt well use despite clear evidence that the wells would deplete minimum instream flows for the Skagit River, adopted by rule. SB 6467, again, opposed by both CELP and the tribes, was also defeated.
Several other bills were offered on the topic of local “water banking” in both the House and the Senate (HB 2760, HB 2596, and 6239). Water banks allow for new water users to purchase “credits” to offset the impact of their water usage in areas where new development would impact instream flows and other existing water rights. While CELP supports that approach generally, we were concerned that these bills might encourage local governments to move forward with water banks without having the technical expertise to properly assess the validity of the rights being banked and to conduct the trading properly. In the end, these bills also fell by the wayside.
On the water quality side, five bills were introduced by the Cattlemen and the Farm Bureau in an attempt to strip away Department of Ecology’s authority to regulate “nonpoint” agricultural water quality problems. “Nonpoint” pollution refers to diffuse sources of pollution—such as cattle manure in streams they use for watering. Once again, these bills were introduced in response to a recent Washington State Supreme Court decision, Lemire v. Ecology, which affirmed that Ecology had clear authority under state law to prevent farms from discharging pollution into the waters of the state. A variety of bills were introduced on this topic (SB 6087, 6288 and HB 2472, 2478) which would have either eliminated the agency’s authority outright or, in the alternative, placed many restrictions on their ability to exercise it. CELP working again with other environmental groups and tribes stopped these bills dead in their tracks. The discussion over this authority will continue this summer in a Water Quality and Agriculture working group created by Ecology Director Maia Bellon to discuss how water quality requirements will be enforced, among other topics. (CELP accepted Ecology’s invitation to l participate in the working group; there are only a handful of few environmental representatives on it). A fifth bill, HB 2454, allows an initial investigation of water quality trading. After considerable effort, CELP ensured that this bill was amended to our satisfaction. The bill is on the Governor’s desk awaiting his signature.
The Legislature’s last order of business was approval of “supplemental” budgets. Since the state operates on a two year, “biennial budget,” the supplemental budgets adopted this year were, for the most part, “course corrections” amending the 2013-14 biennial budget adopted last year. For this reason, the debate lacked much of the drama we saw last year on the main budget. One area in which there was a great deal of controversy was the state Supplemental Capital Budget, which funds construction projects. This year, for the first time since 1996, the House and Senate could not come to agreement on a Capital Budget. Among other things, the collapse of negotiations on this budget sank efforts to create a legislative study group designed to develop recommendations on anticipated referendum to be introduced in 2015 to finance large scale water projects throughout the state. The legislative study group would have been charged with developing a multi-billion dollar revenue source to fund controversial water storage projects, such as those proposed for the Yakima Enhancement Project, as well as water projects that enjoy broad support, including those designed to address harm from stormwater runoff.
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.
Last spring, CELP, along with other groups working to protect Puget Sound, wrote to Department of Ecology’s Director Maia Bellon urging her to propose a petition to the United States Environmental Protection Agency to establish a No Discharge Zone (NDZ) for all of Puget Sound, including the Straits.
Wonderful news: Director Bellon has done just that!
What is a No Discharge Zone?
A NDZ is a body of water where discharging sewage from boats, whether treated or not, is prohibited. Under current law, treated sewage may be discharged anywhere in Puget Sound, and untreated sewage may be discharged as long as the boat is more than three miles from shore.
EPA Region 10, where Washington is located, is the only region without an NDZ. Yet, there are more than 80 NDZs nationwide. Puget Sound is a state and national treasure-but it is imperiled. The evidence is overwhelming: beach closures, contaminated shellfish, dead zones in Hood Canal, the list goes on. As Billy Frank, Chairman of the NW Indian Fisheries Commission, has said, and said often, healthy salmon migrate out of the Nisqually River only to become sick as they move through lower Puget Sound to the ocean.
Establishing a NDZ is a key strategy in the Puget Sound Partnership’s Action Agenda. We can make that strategy become a reality by submitting comments supporting a NDZ. Here’s how to do that: