Monthly Archives: April 2018


Honoring Citizen Activists with the Ralph W. Johnson Water Hero Award

On June 7, the Center for Environmental Law & Policy will be honoring Sara Foster, Laura Leigh Brakke, David Stalheim, Eric Hirst and Wendy Harris with the Ralph W. Johnson Water Hero Award at Celebrate Water 2018. We will be recognizing these five individuals for their activism and involvement in the Hirst and Foster cases brought before the Washington State Supreme Court, which ultimately resulted in improved protections and management of our state’s rivers and streams.

These two cases resulted in triumphs for Washington’s rivers and streams. In 2015, the Foster decision confirmed that the Department of Ecology, which is responsible for managing the state’s waters, cannot issue new water rights that will permanently deplete protected flows in rivers and may not use non-water environmental restoration projects as a basis for issuing water rights. In 2016, the Hirst decision reaffirmed that new wells may not impair more senior water users, including instream flows. Our honorees this year started out as a concerned citizens and fought for better water resource management for all of Washington. These cases and their wins, though now effectively reversed due to a recent bill passed by the Washington State legislature, would not have been possible without the collective diligence and activism of Sara Foster, Laura Leigh Brakke, David Stalheim, Eric Hirst and Wendy Harris.

The Water Hero Award is given in honor of CELP’s founder, Professor Ralph W. Johnson, a law professor at University of Washington Law School who established the legal discipline of Indian Law and advanced legal understandings of protections for public waters. Past recipients of the award include Dr. John Osborn; University of Washington Law School Professor Bill Rodgers; Billy Frank Jr., on behalf of the Northwest Indian Fisheries Commission; Swinomish Indian Tribal Community; and Upper Columbia United Tribes.

Join CELP as we honor these five courageous citizen activists!

  • Event: Celebrate Water, hosted by CELP
  • When: Thursday, June 7th, 5:30-8pm*
  • Where: Ivar’s Salmon House 401 NE Northlake Way, Seattle
  • Tickets: Purchase online or at the door

*CELP will also be offering a pre-reception CLE workshop from 4 to 5 pm.


Washington Water Watch: February/March 2018 Edition

In this issue, a legislative wrap up, an article on the impacts of the Hirst fix, more information on Celebrate Water and Give BIG, the latest edition of Watersheds to Watch, and an introduction to CELP’s newest staff member, Nick Manning. Read the February/March 2018 issue of Washington Water Watch here.

Protecting Rivers and Salmon in a Post-Hirst Future: Hard Work Is Ahead

by Dan Von Seggern

As we discussed in the last issue of Washington Water Watch, the State Legislature passed a bill (ESSB 6091) that was designed to “fix” the Hirst decision.  CELP is deeply concerned about the potential effects of this bill.

First, at least for the next few years, there will be no meaningful controls whatsoever on permit-exempt withdrawals in most of the state.  Most landowners will be able to get a building permit simply by paying a minimal fee, regardless of the effect on streamflows or other water right holders.  Once these new uses have been established, they will represent permanent withdrawals of water, regardless of whether they adversely affect the environment.  Second, and even worse, another part of the bill is clearly intended to overturn the Foster decision, which requires that water withdrawals be mitigated with water.   Foster is a very important control on the use of “out-of-kind” mitigation, which can result in dewatering streams and harm to fish.

The bill does set out processes that are intended to lead to plans (established by watershed planning groups or newly established watershed enhancement committees) for mitigation of well impacts, but its structure creates strong incentives for indefinite delays: any plan adopted would almost certainly be more restrictive than the current situation created by ESSB6091, so that there will be strong pressure to do nothing.

Along with these serious concerns, there is some reason for optimism.  The bill takes a “watershed enhancement” approach and calls for future mitigation plans to offset the impacts of wells on streamflows. As expressions of policy these are welcome statements.   It also provides funding for projects designed to offset the impacts of permit-exempt wells, and at least on paper requires that streamflows be enhanced.  However, as so frequently happens, the devil will be in the details, and the hard work is yet to come.  CELP will be working to ensure that the Department of Ecology’s actions, and those of the watershed enhancement committees, actually benefit streams.

Ecology has announced that it plans to hire additional staff to implement the streamflow enhancement goals of the law.  This is a welcome development.  It has also begun to issue statements offering guidance as to how the new provisions will be interpreted and applied.  How Ecology plans to accomplish the streamflow enhancement goals should become clearer as more guidance is issued.  Ecology will also be responsible for awarding funds to streamflow restoration and enhancement projects and plans to begin accepting proposals this summer.  Careful evaluation of these projects will be critical in order to ensure that real streamflow enhancement occurs.  The work of the legislative task force on out-of-kind mitigation also bears watching, as a “Foster fix” has an even greater potential to impair streamflows.

CELP is cautiously optimistic that a regulatory framework that protects streamflows, fish, wildlife, and other water users can be established.  However, we must be vigilant and carefully evaluate proposals for mitigation of water use, so that the goal of enhancing flows and protecting river/stream environments is actually met.


Watersheds to Watch: WRIA 33 — Lower Snake River

by Nick Manning

Water Resource Inventory Area (WRIA) 33 encompasses the Lower Snake Watershed, including a large portion of the Snake River and its numerous tributary creeks and streams. Originating in the mountains of Idaho and Wyoming, the Snake River runs through southeast Washington, meeting the Columbia River before flowing west into the ocean.  Of the watershed itself, 84% is privately owned, a majority of which is cropland. As a result, most—if not all—of the available water in the Lower Snake Watershed has already been spoken for, according to the Department of Ecology (Ecology) in its WRIA 33 report. Especially during summer months when demand is highest and flow levels are lowest, growing populations, declining groundwater levels, changing climate patterns, and existing excessive damming and pollution have reduced water availability to dangerous levels for local communities and the environment. As of this report, no instream flow rule or watershed plan exists to address this issue.

The Lower Snake Watershed has been designated by the National Oceanic and Atmospheric Administration (NOAA) as critical habitat for four threatened species of salmon. As recently as 1930, half a million salmon ran through the Snake River annually, but by 1990, only 78 made the full trip. In their recovery plan, NOAA reports that more than half of historic salmon habitat has been blocked by dams, with remaining spawning areas in wide river valleys often degraded by development, withdrawals of water, and erosion. Despite being listed as threatened for decades, most wild Snake River salmon and Steelhead returns remain at about the same levels as when they were first listed in the late 1990s. More importantly, the wild returns are still nowhere near NOAA recovery targets, which must be met for eight consecutive years. Federal courts have ruled repeatedly that salmon recovery is impossible without dam removal along the Lower Snake River, but no action has materialized.

Exacerbating the damage to salmon populations and water scarcity is the issue of pollution in the Lower Snake Watershed. In a study conducted by the Natural Resources Conservation Service (NRCS), it was reported that the Lower Snake waters are degraded enough as to be listed under Section 303(d) of the Clean Water Act. This designation is reserved for waters that do not meet the standards of the Clean Water Act and requires Washington State to establish Total Maximum Daily Loads (TMDLs) of discharge into the river. However, most of the land in the watershed is private cropland whose owners have senior irrigation water rights. Therefore, it is extremely difficult for Ecology to monitor all activity affecting the river. This irrigation, combined with grazing livestock and sedimentation from forest roads, causes unmitigated runoff and poses an ongoing threat to salmon populations and overall ecosystem health.

While water levels are declining, and water is not legally available, Ecology has not closed the watershed to new appropriations. However, Ecology has stated that new water appropriation is unlikely without full mitigation. Despite this, the watershed and salmon populations that rely on it are in danger. There is currently no minimum flow level established for the watershed, nor any state recovery plan. New water appropriations have mostly halted, but senior rights holders are still able to take water beyond recoverable levels, and several dams along the river are detrimental to threatened salmon runs. In watersheds like this one where multiple issues intersect, establishing instream flow rules is critical. Instream flow rules in the Lower Snake River Watershed could ensure sufficient water levels and habitat for salmon runs, make the stream more resilient to pollution, and help mitigate overuse from senior water rights holders. CELP urges the Department of Ecology to follow up on its responsibility to set instream flows for WRIA 33 to ensure quality and quantity of water for critical salmon populations and local communities.