Victories in the Courtroom

2006

US Supreme Court sides with states and with CELP’s amicus position; upholds state authority to impose river-protective conditions under section 401 of the clean water act.  High court also emphasizes that exerting private control over public water does not equate to private ownership of that water.

In a unanimous ruling issued Monday, May, 15, 2006, the U.S. Supreme Court resoundingly affirmed that individual states such as Washington have authority under Section 401 of the Clean Water Act to regulate activities that cause artificial changes in river flow, movement, and circulation.

CELP is very pleased with this victory for clean, flowing water! Along with 51 other environmental organizations, CELP argued in an amicus brief for the legal principles that the Supreme Court upheld.

The case name of this important decision is: S.D. Warren v. Maine Board of Environmental Protection, U.S. Supreme Court No. 04-1527. The Court gave a number of written explanations for its decision, and the case will no doubt be cited by water advocates for years to come.

Of particular interest to CELP - which has long supported the public trust doctrine and rejected the notion that the public’s water can be transformed into private ownership (as opposed to being merely a right of use) - the high Court emphasized in its reasoning that exerting private control over water running in a navigable stream does not equate to private ownership of that water. According to footnote number 5: “We disagree that … one can denationalize national waters by exerting private control over them.”

Background: The S.D. Warren Company operates hydroelectric dams on the Presumpscot River in Maine. When Warren applied to the Federal Energy Regulatory Commission (FERC) to renew its dam licenses, it also applied (under protest, but as required by FERC) to the Maine Department of Environmental Protection for a “water quality certification” under Section 401 of the federal Clean Water Act. In considering the application, Maine noted that Warren’s past operations had resulted in intermittent de-watering of the river, and harms to fish habitat and recreational uses. Maine therefore issued the 401 certification with a number of river-protective conditions. Warren appealed – asserting that “the mere flow of the river” through existing dams or turbines does not constitute a “discharge” under the Clean Water Act. Therefore, Warren argued, states lack authority to impose any conditions to protect river flows or water quality.

When the Maine Supreme Court upheld the state agency’s action, S.D. Warren appealed to the U.S. Supreme Court. American Rivers and Friends of the Presumpscot River intervened in the case on the side of the State of Maine.     In December, 2005, CELP joined the National Wildlife Federation and 50 other nationwide environmental organizations in submitting an amicus brief supporting states’ Section 401 authority. The Supreme Court heard oral arguments on February 21, 2006, and issued its unanimous decision on May 15, 2006.

2005

Appellate Court rules in favor of Tribes in Columbia River Water Right appeal; CELP’s Amicus Brief supports winning arguments

Can Ecology ignore the advice of fish experts and Native American Tribes and instead make water right decisions by secretly wheeling and dealing with water-right applicants?  The Pollution Control Hearings Board, Columbia Basin tribes, and CELP say "NO", and the Court of Appeals agrees.  The recent decision by Washington's Division III Court of Appeals in the case Kennewick Public Hospital District v. The Pollution Control Hearings Board, Docket No. 22741-3-III (2005) represents a big win for the Yakama, Nez Perce and Umatilla Tribes, and a loss for Ecology and the would-be water right holders:  the Kennewick Irrigation District, Kennewick Public Hospital District, Lower Stemilt Irrigation District, and Mercer Ranches.

Since 1980 new users of water from the Columbia River have been required to stop diverting water ("interrupt" their use) during periods of drought and low flows.  However, the surface-water permits at the heart of this dispute had no such restrictions.   They resulted from a 2002 settlement agreement between the Columbia Snake River Irrigators Association and Ecology, in which Ecology agreed to issue uninterruptible water rights conditioned only upon the permittees paying $10 an acre-foot per year.  The Tribes appealed this action, and won a summary judgment decision from the Pollution Control Hearings Board (PCHB). The PCHB revoked the permits after finding that Ecology failed to properly follow the Columbia River consultation rules (WAC 173-563-020(4) and WAC 173-531A-060).  It directed Ecology to engage in "meaningful consultation" before making further decisions on the water right applications.   The 2003 PCHB case Yakama Nation, et a. vs. Ecology, et al can be found online.

When Ecology and the "et al" (would-be-permittees) thereafter appealed the PCHB decision, the Tribes successfully petitioned for direct review by the Washington State Court of Appeals.  CELP stepped-in at this stage and, in 2004, submitted an Amicus Curiae (friend of the court) brief in support of the PCHB.  The appellate court heard oral arguments on the case in January, 2005, and affirmed the PCHB decision on March 17, 2005.  Find the full opinion online.   The case name is: Kennewick Public Hospital District v. Pollution Control Hearings Board, Court of Appeals Docket No. 22741-3-III.

Congratulations to winning tribal attorneys Jeff Schuster, David Cummings, Julie Kane and Naomi Stacy.  Attorneys for Amicus Curiae were Karen Allston & Shirley Nixon for CELP, and Julie Carter for the Columbia Inter-Tribal Fish Commission.

CELP Wins summary judgment ruling in CAO Referendum challenge; appeal underway

CELP's 2004 joint lawsuit with co-plaintiffs 1000 Friends of Washington (now, Futurewise) and King County, (1000 Friends of Washington, King County, and Center for Environmental Law & Policy  vs. Rodney McFarland) was heard on an expedited basis by King County Superior Court Judge Palmer Robinson.  On January 11, 2005, Judge Robinson ruled in favor of CELP's (and co-plaintiffs') position, and declared that the ordinances in question   "are not subject to referendum, and that King County is not required to place any referenda of these ordinances on the ballot, or take any other related actions."  As a result of this ruling, the disputed Critical Areas Ordinances (CAO's) took effect in January, 2005, as planned.

The defendant, who had sought to overturn the CAO’s via a referendum petition drive, promptly appealed Judge Robinson's ruling, and has asked the Washington Supreme Court to accept direct review. Direct review would eliminate one step in the appeal process – namely, a hearing before the Court of Appeals – and could speed the time-frame for reaching a high-court decision.  The Supreme Court has assigned a cause number – No. 76581-2 – but has not yet decided whether to grant direct review of the appeal.

2004

CELP files Amicus Brief in Columbia River water right dispute

As explained above, CELP supported Columbia River Tribes in the defense of their 2003 win at the Pollution Control Hearings Board in the case  Yakama Nation, et a. vs. Ecology, et al, PCHB 03-030 through 03-036.  The water-rights at the heart of the tribal appeal were ones that were "batch processed" by Ecology along with the water right issued to the "Quad Cities" of Richland, Kennewick, Pasco and West Richland.  CELP successfully appealed the Quad Cities water right in 2003 (see summaries and links, below).  CELP’s familiarity with the specific legal issues, and its expertise on water law and policy no doubt helped persuade the court of the value of CELP’s brief.  Following is an excerpt from the December 27, 2004 Clerk of the Court of Appeals Ruling:

"The Center for Environmental Law & Policy moves for permission to file an amicus curiae brief.  Kennewick Irrigation District and Mercer Ranches, Inc. and Department of Ecology have filed objections to that motion.  It appears the amicus curiae brief filed on December 20, 2004 may assist the appellate court.  Therefore, the motion is granted and [CELP’s] brief is accepted for filing."  Ecology vs. PCHB; Court of Appeals Case No. 22758-III

See a copy of the text of CELP’s amicus brief (minus appendices – contact CELP if you would like to see a hard copy of these) here:  CELP Amicus FINAL

CELP reinforces the public’s right to know

CELP’s watch-dogging and advocacy roles depend upon the ability to obtain timely information about governmental actions and activities.  Therefore, CELP takes the Washington Public Disclosure Act, RCW 42.17.250 et seq ("PDA") very seriously.  The PDA requires that agencies respond promptly to citizen requests for public documents, and it imposes monetary penalties if such documents are unreasonably withheld.   CELP filed a lawsuit under the PDA when it learned in March 2004 that Ecology failed to provide full and timely responses to some of CELP’s requests for public information.   Ecology admitted that it violated the PDA, turned-over all requested documents, and in June 2004 settled the suit by paying statutory civil penalties, costs, and attorney fees.  CELP and Ecology also entered into an agreement intended to assure timely agency compliance with the Public Disclosure Act, and to resolve any future disputes over CELP’s record requests.

2003

CELP asserts and assures its legal standing to continue speaking out for rivers

CELP firmly established the legal right of environmental groups to challenge procedural, as well as substantive irregularities in agency decision-making about water rights. When the "Quad Cities" of Kennewick, Pasco, Richland, and West Richland pressured the state for a huge new water right from the Columbia River, Ecology violated standard procedures and bent over backwards to issue the permit, despite contrary advice from the Washington Department of Fish and Wildlife, National Marine Fisheries Service, and tribal fish experts. CELP appealed the permit, and won a significant decision from the Pollution Control Hearings Board affirming CELP's standing to appeal procedural, as well as substantive irregularities. The PCHB decision, CELP v. Ecology, PCHB 02-216, can be found at:  www.eho.wa.gov/searchdocuments/2003%20Archive/pchb%2002-216%20summary%20judgment.htm   CELP then went on to win important protections for the Columbia as well as improvements in statewide water policy via a negotiated settlement of the appeal.   (see below, and related links)

CELP shapes future of the Columbia River Initiative & leverages better environmental protections for river resources

In a settlement agreement for the same case described above -  CELP vs. Ecology and the Quad Cities of Richland, Pasco, Kennewick and West Richland, PCHB 02-216 -  CELP gained more tools to protect the Columbia River.  In order to settle CELP's lawsuit, Ecology agreed to a number of pro-river terms, including stricter water conservation requirements.  (See the Columbia River page for details.) Importantly, Ecology agreed to postpone formal rule-making in the Columbia River Initiative until it received the final scientific report from the National Academies of Science panel (due in March 2004), and also agreed not to issue further water right permits from the Columbia River until January 1, 2005, or the effective date of the new Columbia River rules, whichever comes first.

CELP supports ESA-related protections for the Methow River Basin

CELP's intervention in a federal lawsuit helped establish a precedent affirming the US Forest Service's authority to protect river flows.  The Forest Service refused to issue permits for irrigation canals across forest-lands when the National Marine Fisheries Service (now NOAA Fisheries) determined that water diversions would reduce flows in the Methow basin in a way that jeopardized salmon survival.  When the irrigators filed suit, CELP and colleagues in the environmental community intervened to represent the public interest.  In October 2003, the Ninth Circuit Court of Appeals affirmed that the Forest Service had acted correctly in denying permits for the irrigation canals.  The United States Supreme Court, on May 3, 2004, denied certiori, which in effect affirmed the Appellate decision, making it binding law for our region.

Earthjustice Press Release - May 2004

CELP acts as Amicus to Washington Supreme Court in "Third Runway" case

When the Washington Supreme Court deliberated on a case involving environmental permitting for the proposed expansion of Seattle-Tacoma International Airport, CELP provided valuable input in the role of Amicus Curiae ("friend of the court").  The case centered around the Port of Seattle’s plan for adding a third runway  - to be built atop enormous amounts of dirt dumped into creeks, valleys, and 20 acres of wetlands – thereby altering the drainage basins of three Class AA fish-bearing streams.  The vast new impervious surfaces will also prevent rainwater from flowing naturally into the streams, threatening them with contamination from polluted run-off.   The Pollution Control Hearings Board (PCHB) therefore ordered the Port of Seattle to take a number of environmentally-protective actions.  One of these required the Port to obtain a water right in connection with its scheme for capturing stormwater, storing it in underground reservoirs, and later using it to augment for low stream-flows caused by the project.  In its October 2003 Amicus Curiae brief to the Court in Port of Seattle vs. Pollution Control Hearings Board, et al, [link to brief]. CELP supported the PCHB decision and pointed out that rainwater which would normally flow into wetlands, aquifers, rivers and streams, belongs to the public.  Capturing and using large amounts of the public's water for a beneficial use - such as for stream flow augmentation -  requires the user to first obtain a water right and reservoir permit.   In a March 2004 decision that narrowly addressed SeaTac airport’s unique circumstances, the court analyzed the Port’s scheme under regulations governing stormwater management, and overturned the PCHB’s requirement that the Port obtain a water right.    

Selected pre-2003 Courtroom Victories

Reinforcing the public’s right to know

Water conservancy boards are independent units of local government that make water right transfer and change decisions impacting all water users - including irrigators, fishers, kayakers, hikers and any person who enjoys a flowing river.  In 2001, CELP legally challenged two water conservancy boards for their failure to follow public disclosure laws. Despite repeated requests, these boards refused to provide CELP with verifiable public documents such as records of decision and meeting minutes.   In 2002, the Adams County Water Conservancy Board admitted that it failed to comply with state public disclosure laws, and paid a monetary settlement to CELP.  In 2003, the Lincoln County Water Conservancy Board did the same.  These legal victories support CELP's position that water conservancy boards must be accountable to the public and make water allocation decisions openly and responsibly. The lawsuit has led to greater compliance with CELP’s requests for public records to the water conservancy boards across the state.

CELP helps stop "exempt well" abuse

A so-called "exempt well" is one that does not require a formal water-right application because it is intended to pump a relatively small amount of water – often for such purposes as single-family domestic use.   Most exempt wells have no meters to measure how much water is really being used.  In 2001 CELP filed a Friend of the Court (Amicus Curiae) brief that assisted the Washington Supreme Court in reaching its 2002 decision in  ECOLOGY v. CAMPBELL & GWINN, L.L.C., (146 Wn.2d 1, 2002).   The Court ruled that developers of subdivisions cannot rely on multiple "exempt wells" for new subdivisions when the cumulative water withdrawal from the homes is more than 5,000 gallons a day.  With water supplies growing ever more scarce, this case sets an important precedent that should prevent developers from abusing the exempt well statute (RCW 90.44.050) in order to circumvent laws requiring that they instead apply for a water-right.

CELP battles to keep gold mine from polluting groundwater and streams

Due to citizen activism and environmental-group pressure, the Battle Mountain Gold Company in 2002 abandoned its plans for an open pit cyanide-leach gold mine in Okanogan County. In 2000, CELP and other environmental groups won a legal challenge to Battle Mountain Gold's water quality permits.  Saying the Crown Jewel project was no longer economically feasible,  Newmont Mining Corp. withdrew from a decade-long effort said to cost more than $80 million in prospecting, permitting and legal fees.

CELP questions extent of Water Conservancy Boards’ authority

In 2000, CELP successfully sued to limit the authority of inexperienced local water conservancy boards. The court ruled that under the Conservancy Board statute, such Boards are authorized only to consider water right transfers, not changes in the purpose of use of a water right. The difference is significant - a person who wants to "transfer" a water right merely passes water that has already been designated for a particular use to another person for the same use. When a person seeks to "change" a water right, however, they seek an adaptation of that use for their own benefit, which can mean an increase in the total amount of water consumed. With both, the effect on other water users and the environment must be considered first.  The law governing Water Conservancy Boards has continued to broaden and evolve since 2000.  Some of the changes require additional training of board members, and oversight by Ecology.  See Chapter 173-153 WAC for more particulars on the authority of WCB’s.

CELP forces Ecology to implement water-metering statute

In 1999, CELP sued, and in 2000, CELP won a lawsuit compelling the State Department of Ecology to implement the 1993 statute (RCW 90.03.360) that requires water users to measure their water withdrawals.  Judge Richard Hicks of the Thurston County Superior Court said that measuring and reporting water use is a "necessary step to bring us out of the dark and into the light" when it comes to addressing salmon recovery issues.  He ordered Ecology to immediately engage in rule-making to implement the metering statute, to follow a compliance plan designed to prioritize the metering and reporting of water use in 16 fish-critical watersheds, and to achieve compliance with the plan by March, 2003.   Read more about CELP’s actions to enforce this courtroom victory;  and  Read more about the law relating to water metering and measurement on Ecology’s water resources web site.