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!
Center for Environmental Law & Policy
American Whitewater * North Cascades Conservation Council
News Advisory – April 19, 2016
- Andrea Rodgers (Western Environmental Law Center) firstname.lastname@example.org
- Dan Von Seggern (Center for Environmental Law & Policy) email@example.com
- Thomas O’Keefe (American Whitewater) firstname.lastname@example.org
When: Wednesday, April 20 at 9:30 a.m.
Where: Seattle – Washington State Court of Appeals, District 1; One Union Square, 600 University St.
What: Oral argument in a challenge to the Washington State Department of Ecology for issuing water rights that would nearly completely dewater a segment of the Similkameen River while burdening ratepayers with substantial costs.
Plaintiffs: Center for Environmental Law & Policy, American Whitewater, and North Cascades Conservation Council – members of the Hydropower Reform Coalition.
Defendants: Washington State Department of Ecology, Public Utility District No. 1 of Okanogan County, Washington, and Washington State Pollution Control Hearings Board
Enloe Dam is a cement plug blocking the free-flowing Similkameen River in north central Washington State and British Columbia. The dam has not generated power since the 1950s, with prior efforts to re-energize the dam being rejected by regulators. The local Public Utility District, Okanogan PUD, once again proposes to electrify the old Enloe Dam, almost completely dewatering an important stretch of the river including Similkameen Falls in violation of Washington water law.
Economic studies, including one by the Okanogan PUD itself, conclude that the project would result in substantial financial losses. The economic risks increase when one considers the fact that the water rights to operate the project violate a forty-year-old regulation that protects instream flows for people and fish. If Okanogan PUD were to move forward, then they could spend millions of ratepayer dollars to build a project without water to operate it. Ratepayers in the Oroville area have vigorously opposed the PUD proposal for financial and other reasons.
Despite the fact that a legally required study to assess the impacts of the Project on aesthetic and recreational resources has not been completed, the Washington State Department of Ecology (Ecology) issued a water right to the PUD to divert water from the Similkameen River. River advocates challenged the State’s decision to exploit the public’s waters for an economic loser of a project. On Wednesday, Division 1 of the Court of Appeals will hear oral arguments in the case. The attorney for the river advocates is Andrea Rodgers of the Western Environmental Law Center.
On the PCHB (the Pollution Control Hearings Board or “Board”) correctly requiring an aesthetic analysis of dewatering a river — and then incorrectly approving water rights that would dewater the river:
“Ecology granted a water right for this project at the expense of bedrock principles of Washington water law,” said Andrea Rodgers the Western Environmental Law Center attorney representing the coalition groups. “In particular, the board ruled that it was not necessary to gather information about the aesthetic and recreational impacts of the project until after the hydro project is built. Ecology has put the cart before the horse and in doing so broke laws that protect our state’s precious water resources.”
On the importance of the Similkameen River to the people of Washington State:
“The Similkameen River is a valuable resource to the community for recreation, scenic values, and fish and wildlife. As with other rivers across the state, recognition of the importance of flows for aesthetic and recreational purposes is important to our organization. We will continue to press legal issues that protect the Similkameen River and Falls as multi-use public resource given the significance of this decision for rivers statewide,” said Thomas O’Keefe, Pacific Northwest Stewardship Director with American Whitewater.
On the statewide significance of this case:
“The water permitting process is designed to make sure that the public’s waters are allocated wisely and protected from over-exploitation. In this case, the Department of Ecology issued a permit that would remove nearly all water from this stretch of the river without ensuring that aesthetic and recreational values would be protected. The Enloe Dam appeal sends a message of statewide significance that the Department of Ecology must promote balanced use of Washington’s waterways,” said Dan Von Seggern with the Center for Environmental Law & Policy.
Immediate release: April 13
Midwestern Republican Senators working to muzzle Water Pollution education project in Washington State
“What’s Upstream?” focusing on struggling rivers, salmon
- Trish Rolfe Center for Environmental Law & Policy 206-829-8299 email@example.com
- Jean Melious Center for Environmental Law & Policy firstname.lastname@example.org
- John Osborn MD (Columbia River Future Project, Sierra Club) 509.939-1290 email@example.com
Today, the Center for Environmental Law & Policy and the Columbia River Future Project of Sierra Club criticized two U.S. Senators, Pat Roberts (R-Kansas) and Jim Inhofe (R-Oklahoma) for pressuring the U.S. Environmental Protection Agency to kill funding for a public education effort to protect clean water and rivers. While many rivers in Washington State are damaged by agricultural practices, representative of the controversy is the Nooksack River flowing to Puget Sound.
“It is simply a fact that fecal coliform pollution in the Nooksack River violates state water quality standards,” said CELP board member Jean Melious, an attorney and professor of Environmental Studies at Western Washington University. “We have to be able to talk about unregulated industrial agricultural practices on Puget Sounds’ rivers if we are going to fix these problems and help restore Puget Sound.”
The Nooksack River is located in southern B.C. and northwestern Washington, and flows into the Salish Sea (Puget Sound). Pollution from agricultural operations, as well as illegal water withdrawals in the U.S. have severely damaged the Nooksack River threatening salmon runs while contaminating and contributing to the closure of shellfish beds. A recently released report documents the damaging impacts on Puget Sound from industrial agricultural practices.
In response to water pollution from agricultural practices, conservation groups and tribes undertook a public education effort called What’s Upstream? with funding from EPA. The Washington State Dairy Federation, among other agriculture lobby groups, attacked EPA. Those attacks now are underway in the U.S. Senate, led by Sen. Roberts and Sen. Inhofe.
On April 4, U.S. Senate Agriculture Committee Chairman Roberts issued a statement criticizing the clean water education effort. Both Roberts and Inhofe have written the inspector general of the EPA asking for an investigation.
“Our rivers are in distress,” said Trish Rolfe, director of the Center for Environmental Law & Policy. “We are disappointed and troubled that two Senators from the Midwest would try to stop efforts to educate Washington state residents about water pollution from industrial agriculture and the simple steps that agriculture could take that would dramatically improve water quality in our rivers.”
“The public needs to know we can have both clean, healthy rivers and responsible agricultural practices,” said John Osborn, a Spokane physician who directs Sierra Club’s Columbia River Future Project. “We cannot achieve both clean water and food production if industrial agriculture dodges regulation.”
What’s Upstream? Is a project of the Center for Environmental Law & Policy, Puget Soundkeeper Alliance, the Swinomish Tribal Indian Community, and the Western Environmental Law Center. The goal of “What’s Upstream?” is to inform the public about leading causes of water pollution and how that pollution affects the health of Washington’s waterways, people and fish. The project has been funded wholly or in part by EPA.
- What’s Upstream?
- Inhofe, Roberts Request IG Investigation of EPA Funds on Anti-Farmer Campaign
- Agricultural Pollution in Puget Sound: Inspiration to Change Washington’s Reliance on Voluntary Incentive Programs to Save Salmon.
- Nooksack Water Thievery Redux
News Release – April 6, 2016
Spokane River PCB Cleanup is Not Adequate:
Federal Appeals Court Dismisses State-County Appeal
Spokane County, Kaiser, and Department of Ecology had challenged decision to protect Spokane River
- Rachael Paschal Osborn (Sierra Club, Center for Environmental Law & Policy) 509.954-5641 firstname.lastname@example.org
- Richard Smith (Smith & Lowney, PLLC) 206.860-2124 email@example.com
- Dan Von Seggern (Center for Environmental Law & Policy) 206.829-8299 firstname.lastname@example.org
- Ted Knight (Spokane Tribe of Indians) 509.953-1908 email@example.com
Spokane: Advocates for the Spokane River hailed an April 5 decision by the federal Ninth Circuit Court of Appeals dismissing the appeal filed by Spokane County, Kaiser Aluminum Washington, LLC, and the State of Washington Department of Ecology (State Ecology). The Ninth Circuit decision lets stand the U.S. District Court’s ruling that the U.S. Environmental Protection Agency (EPA) cannot substitute the Spokane River Regional Toxics Task Force, a polluter-dominated committee process, for a cleanup plan for Spokane River PCBs.
“The sewage and industrial treatment plants such as City of Spokane and Inland Empire Paper are moving forward with pollution control projects, but absent a clean-up plan, there is no target against which to measure success. After spending hundreds of millions of taxpayer dollars, these plans may not measure up,” said Rachael Paschal Osborn of CELP and Sierra Club.
The Spokane River is heavily polluted with PCBs and other toxic chemicals. Despite years of analysis, Ecology and EPA have failed to prepare a clean-up plan for the River. State and EPA-issued pollution discharge permits for municipal and industrial treatment plants in Washington and Idaho do not contain numeric standards limiting the release of toxins into the Spokane River. The Washington Department of Ecology is due to renew those permits this year, but the agency is not expected to include numeric limits for toxics.
In 2011, the Washington Department of Ecology abandoned efforts to adopt a PCB cleanup plan, largely because of political opposition by Spokane River polluters, who would be required to reduce PCBs in effluent by up to 99% to meet both Washington State and Spokane Tribe water quality standards. These polluters include Inland Empire Paper, Kaiser, and the Liberty Lake, Spokane County, and City of Spokane sewage treatment plants. Instead, Ecology formed the Spokane River Toxics Task Force and required the polluters to participate, but also gave them control over the goals and activities of the Task Force. Subsequently EPA issued discharge permits to three Idaho dischargers – the City of Coeur d’Alene, Post Falls and Hayden Water & Sewer District – also not requiring PCB limits and also requiring participation in the Toxics Task Force.
Sierra Club & CELP filed a citizen lawsuit against EPA in 2011. The Spokane Tribe of Indians intervened in support of the citizen lawsuit, and the Department of Ecology, Spokane County and Kaiser intervened to defend EPA. U.S. District Court Judge Barbara Rothstein ruled in March 2015 that EPA’s failure to require a clean-up plan was an abuse of discretion and ordered EPA to submit a plan to the Court by July 2015. EPA, Ecology, Kaiser, and Spokane County appealed the ruling, but EPA withdrew its appeal and submitted a document (which fails to require a cleanup plan) to the District Court. On April 5, the Ninth Circuit Court of Appeals dismissed the Ecology-County-Kaiser appeal in a one-paragraph decision. This means that a CELP-Sierra Club challenge to the EPA’s “non-cleanup plan” document will now move forward in District Court.
“Spokane River fish continue to be heavily contaminated with PCBs,” said Rachael Osborn, senior policy adviser for the Center for Environmental Law & Policy and Spokane River Project Coordinator for Sierra Club’s Upper Columbia River Group. “Obtaining a PCB cleanup plan is essential to public health and especially important for people who eat fish from the Spokane River, including immigrant populations and Spokane Tribal members.”
“After years of delay on the part of the agencies, the Court today rejected the state’s ‘fox in the chicken coop’ strategy of putting the polluters in charge of a cleanup plan,” Osborn continued, “Instead, the Court has ruled that a real cleanup plan, prepared within a reasonable timeframe, is required.”
THE MARCH 2015 U.S. DISTRICT COURT DECISION:
Judge Rothstein’s March 2015 decision found that the Task Force is not a proper substitute for a Clean Water Act-mandated limit on PCBs (Total Maximum Daily Load, or “TMDL”), stating (at page 21):
There comes a point at which continual delay of a prioritized TMDL and detours to illusory alternatives ripen into a constructive submission that no action will be taken. With the Task Force as presently proposed, Ecology is coming dangerously close to such a point, and with EPA’s support. Accordingly, the Court finds that the EPA acted contrary to law in finding the Task Force, as it is currently comprised and described, a suitable “alternative” to the TMDL.
Judge Rothstein also ordered EPA to report back to the Court within 120 days with a specific plan to complete a PCB TMDL (at page 22):
. . . EPA shall work with Ecology to create a definite schedule with concrete goals, including: clear statements on how the Task Force will assist in creating a PCB TMDL in the Spokane River by reducing scientific uncertainty; quantifiable metrics to measure progress toward that goal; regular checkpoints at which Ecology and the EPA will evaluate progress; a reasonable end date, at which time Ecology will finalize and submit the TMDL for the EPA’s approval or disapproval; and firm commitments to reduce PCB production from known sources in the interim.
MORE ABOUT PCBs and TMDLs:
PCBs are a group of industrial compounds associated with liver dysfunction and cancer, and are now banned in the United States. Washington State formally recognizes that the Spokane River is impaired for PCBs. The Department of Ecology issues pollution permits (known as NPDES permits) to companies (such as Inland Empire Paper and Kaiser) and municipalities, allowing them to pollute the Spokane River up to certain thresholds.
When a river is listed for PCBs, the federal Clean Water Act requires a cleanup plan (a TMDL) before issuing any permits that would add more PCBs to the Spokane River. The Washington Department of Ecology is attempting to sidestep the law by not preparing a PCB cleanup plan, and issuing NPDES permits anyway.
Sierra Club and CELP are represented by Richard Smith and Marc Zemel of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation. The Spokane Tribe of Indians is represented by Ted Knight.
In this issue, you’ll find an article on the takeaways for water resource issues from the legislative session, our petition for higher water flows on the Spokane River, an article by CELP Staff Attorney Dan Von Seggern on protecting instream resources in Washington, and more.