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Join CELP and CCA Lower Columbia to Learn about Protecting Streamflow and Fish Habitat in Southwest Washington

Join the Coastal Conservation Association Washington’s Lower Columbia Chapter for their November meeting and learn about protecting streamflow and fish habitat in southwest Washington.

CELP’s Water Policy Organizer Nick Manning will be presenting and discussing protection efforts for the Cowlitz, Lewis, Grays and Elochoman Rivers. Bring questions and a friend (or two).

Food and drink will be available. All are welcome to attend!

  • When: Thursday, November 8 @ 6:30 pm
  • Where: The Carriage Restaurant — 1334 12th Avenue, Longview WA

Hirst Update: Watershed Restoration and Enhancement Committees

by Trish Rolfe
Last session, the Washington State Legislature passed a streamflow restoration law, ESSB 6091, in response to the Supreme Court’s

Hirst decision. Hirst changed how counties could approve or deny building permits that use permit-exempt wells for a water source.

The law, RCW 90.94 Streamflow Restoration, helps protect water resources while providing water for rural residents reliant on permit exempt wells. The law directs local planning groups in 15 watersheds to develop or update plans that offset potential impacts to instream flows associated with new permit-exempt domestic water use. The law splits up these watersheds into two groups: those with previously adopted watershed plans and those without.

The Nooksack, Nisqually, Lower Chehalis, Upper Chehalis, Okanogan, Little Spokane, and Colville basins all have previously adopted watershed plans. For these seven basins, local watershed planning units are to update their watershed plan in order to compensate for the impacts of new permit exempt well uses.
The law identifies the Nooksack and Nisqually basins as the first two to be completed. They have until February 2019 to adopt a plan; if they fail to do so, Ecology must adopt related rules no later than August 2020. Planning units in the Lower Chehalis, Upper Chehalis, Okanogan, Little Spokane, and Colville basins have until February 2021 to develop their plans. Until watershed plans are updated and rules are adopted in these seven watersheds, new permit-exempt wells require only payment of a $500 fee. The maximum withdrawal is 3,000 gallons per day per connection on an annual average basis.

Deschutes River – Photo from WA Dept of Ecology

Eight other watersheds do not have previously adopted watershed plans. They are Snohomish, Cedar-Sammamish, Duwamish-Green, Puyallup-White, Chambers-Clover, Deschutes, Kennedy-Goldsborough, and Kitsap. For these eight basins:

  • Ecology will establish and chair watershed committees and invite representatives from local governments, tribes, and interest groups.
  • The plans for these watersheds are due June 30, 2021.
  • New permit-exempt wells require payment of a $500 fee.. The maximum withdrawal is 950 gallons per day per connection, on an annual average basis. During drought, this may be curtailed to 350 gallons per day per connection for indoor use only.
  • Building permit applicants in these areas must adequately manage stormwater onsite.

CELP has been appointed to participate on the Snohomish, Cedar-Sammamish and Duwamish-Green watershed planning units, and we have volunteers participating in several others.

The law also provides $300 million until 2033 for projects that will help fish and streamflows. Watershed planning groups will recommend proposals for funding by Ecology to achieve this.

Litigation News: Freeing the Similkameen River and Dungeness River Rule Challenge

by Dan Von Seggern

CELP Continues Fight to Free Similkameen River

The long-running battle to remove this environmentally damaging and economically unjustifiable Enloe Dam continues. A major tributary to the Okanogan River, the Similkameen flows through 122 miles of potential salmon habitat in British Columbia and Washington. A fish-blocking dam was constructed on the River in 1922 and has not generated power since 1958. The Okanogan County Public Utility District (PUD), which owns the dam, is attempting to restart power generation at the dam. The power the dam would produce is not needed and would be much more expensive than the PUD’s current sources of electricity.

On September 13, along with the Sierra Club and Columbiana, CELP filed a Notice of Intent to Sue the Okanogan County PUD as well as the National Marine Fisheries Service (NMFS) and the Federal Energy Regulatory Commission (FERC) over the dam’s effect on ESA-listed Upper Columbia steelhead and Chinook salmon. The Notice is the first step towards filing a lawsuit under the Endangered Species Act. We contend that the dam unlawfully harms ESA-listed fish species, that the process of evaluating the dam’s impact on fish was inadequate, and that FERC unlawfully failed to consult with NMFS regarding the listed fish, as the Endangered Species Act requires.

In a separate action, CELP has asked the 9th Circuit Court of Appeals to review FERC’s giving the PUD additional time to begin construction. The Federal Power Act requires that construction be started within the period of a hydroelectric license, and allows only a single two-year extension. When the PUD failed to begin construction within the required time, FERC “stayed” revocation of the license, effectively giving the PUD additional time. CELP believes that FERC lacked authority to “extend” the license in this manner and that it should have allowed public participation in the license amendment process.

Dungeness River Rule Challenge

This case (Bassett et al. v. Ecology, Case No. 51221-1-II) is a challenge by a group of property rights activists and developers to the Department of Ecology’s Instream Flow Rule for the Dungeness River, WAC 173-518.  CELP supports the Rule, which provides for mitigated use of new permit-exempt wells while protecting instream resources.  After the plaintiffs filed suit against Ecology, CELP joined in the case as an intervener to argue in favor of the Rule. CELP and Ecology prevailed in Thurston County Superior Court, and plaintiffs appealed.   Division II of the Washington Court of Appeals heard oral argument in the case on October 18 and we are now awaiting the Court’s ruling.

Washington Water Watch: July 2018 Edition

In this issue, a recap on Celebrate Water, a tribute to former CELP Board President and Ralph W. Johnson Water Hero Award Nancy Rust, an update on the Culvert case, an introduction to CELP’s summer legal intern, Meredith Bro, and more. Read the July 2018 issue of Washington Water Watch here.

Join CELP at the Southwest Washington Fair!

Since 1909, the Southwest Washington fair in Chehalis has drawn crowds from all over the state to play, compete, eat, and learn. Whether you want to rock out to the all-female AC/DC cover band “Hells Belles,” test your luck on the carnival rides, feast on a variety of fried breads, admire the livestock and harvests from farmers all over Washington, or learn from a variety of informational and fun exhibits, we would love to see you there!

The fair runs from August 14 to 19, and CELP will be operating a booth in the exposition building Thursday, August 16 to Sunday, August 19. We will be talking with folks about protecting their water resources and building support behind establishing instream flows in Southwest Washington (more information on instream flows can be found under “water programs”). There are 11 free tickets available for anyone who would like to volunteer to come down and help with the booth, as well as parking passes and camping spots.

If you would like to help promote sustainable water management while also experiencing one of Washington’s most iconic gatherings, please email Nick Manning at nmanning@celp.org. We hope to see you there!


Culvert Case Update: A Victory for Tribal Treaty Rights

by Dan Von Seggern

On June 11, an equally divided United States Supreme Court affirmed the 9th Circuit Court of Appeals’ decision in Washington v. United States (the “culvert case”). This long-running case, filed in 2001, involved fish passage-blocking culverts under roads owned by the State of Washington (or “the State”). The United States and a group of Indian Tribes filed suit seeking an injunction requiring the State to repair culverts under its control to restore access of fish, including salmon and steelhead, to more than 1,000 miles of upstream habitat. Restoring passage is expected to result in production of several hundred thousand more adult fish annually. This will be a significant boost for the State’s ailing salmon runs and for those who depend on the runs.

In 2013, U.S. District Court Judge Martinez found for the Tribes and ordered that the culverts be repaired. Judge Martinez held that the 1854-5 Stevens Treaties, by which the Tribes ceded vast amounts of land for settlement, would have been understood by the Tribes at the time as a guarantee that there would forever be salmon available to them. He further held that the fish-blocking culverts were an impermissible infringement on the Tribes’ treaty rights. The State appealed to the 9th Circuit Court of Appeals, which affirmed the decision.

The Supreme Court (without the participation of Justice Anthony Kennedy, who had been involved in an earlier aspect of the case) affirmed the decision without a written opinion. This decision means that the Order requiring the culverts be removed or repaired will stand and fish will again have access to the habitat which they need to recover and thrive. This decision is also a significant victory for Tribal treaty rights, in that the right to fish is now understood to include the right to habitat suitable for fish production.


In Memory of Nancy Shuttleworth Rust: Former CELP Board President & Ralph W. Johnson Water Hero Awardee

Nancy was born in Iowa City, Iowa on September 15, 1928, the second of the three daughters of Beatrice Gates Shuttleworth and Frank Kayley Shuttleworth. She married the love of her life, Dr. Richard Eno Rust, on June 11, 1949. She received a Master’s degree in Mathematics from the University of Iowa in 1952.

Nancy served as a member of Washington State’s House of Representatives from 1981-1996, having begun a life of political activism by joining the League of Women Voters in the mid-1950s. As a member of the League, Nancy worked on voter registration campaigns, numerous ballot initiatives, tax reform, and the Equal Rights Amendment. From her sixty-some years of involvement in politics and community service, she will be most remembered for her work on environmental issues. She chaired the House Environmental Affairs Committee from 1983-1994. As Chair, Nancy oversaw passage of (or protected from modification) legislation regarding hazardous waste management, workers’ right to know, shorelines management, growth management, and legislation to prevent oil spills on Puget Sound.

Nancy was named the Audubon Legislator of the Year for the legislative sessions of 1983-84 and 1986-87, and she was named the Legislator of the Year by the Washington Recyclers in 1982. After leaving the legislature she continued to work for the environment in many ways, including serving as board president for the Center for Environmental Law and Policy (CELP). In 2006, she was the recipient of CELP’s Ralph Johnson award, which is given in honor of “exemplary service on behalf of Washington’s waters and people.”

Along with her involvement in public affairs, Nancy led a vibrant and varied personal life. The mother of six children, she was active in the PTA and was on the board of Greater Seattle Girl Scouts. she was active in the PTA, served on the board of Greater Seattle Girl Scouts, led Girl Scout troops, and went on countless Girl Scout outings. Having grown up on the East Coast, she fell in love with the Pacific Northwest on her first visit to the area in 1951. She enjoyed getting out into nature in all kinds of ways, whether by day-hiking, back-packing, skiing, biking or as a member of the Washington Native Plant Society.

Nancy and her husband Dick were active in the Bicycle Adventure Club–participating in 40-some multi-day rides–and led a popular 14-day ride that began in Seattle and wound its way through the San Juan Islands to Victoria BC. She and Dick were also avid international travelers. Many of their trips to Europe were on bicycle, but they also enjoyed numerous trips in Europe and beyond as participants in Elder Hostel and Roads Scholars programs.

Back home in Seattle, Nancy loved the symphony, opera, fine arts, and theatre. In synchrony with any other activity, Nancy enjoyed knitting. After knitting multiple sweaters for members of the family, she knit clothing items for a nonprofit humanitarian aid organization, afghans for Afghans.

Memories of Nancy will be cherished by her beloved husband; her two sisters, Margaret Vernallis and Carol Hake and brother-in-law Dexter; her six children, Martha (and spouse Leslie Myrick), David (Janice Reebs), Steven (Cate Brigden), Michael (Julia Sabo), Amy, and Elizabeth; three grandchildren, Arcadia Smails and grandson-in-law Rodney Minott, Alexa Rust, and Benjamin Rust; and one great grandson, Joseph Minott.

A celebration of Nancy’s life will be held on August 12 from 3:00-5:00 PM at Horizon House  at 900 University St. in Seattle (off-street parking available at the corner of University St. and 9th Avenue).


Celebrate Water 2018 Successes: Thank You!

Thanks to our sponsors and all our supporters who attended Celebrate Water this year! We had a wonderful time at Ivar’s once again this year commemorating yet another successful year of CELP’s work to preserve, protect and restore Washington’s water resources. And special thank you to our CLE presenter, Robert T. Anderson, for educating us on the Culvert Case!

We were thrilled to honor Sara Foster, Laura Leigh Brakke, David Stalheim, Eric Hirst and Wendy Harris with the Ralph W. Johnson Water Hero Award for their activism in the Hirst and Foster Supreme Court Cases. Their diligence ultimately resulted in improved protections and management of Washington’s rivers and streams by the Department of Ecology. Our honorees began as concerned citizens, and the wins they secured in the Washington Supreme Court would not have been possible with the collective dedication and involvement of these five individuals. Thank you, again, to our five honorees for their contributions towards ensuring future generations have access to clean and flowing water in Washington!

Ralph W. Johnson awardees & CELP Board members. R to L: Eric Hirst, Wendy Harris, Jean Melious, Laura Leigh Brakke, David Stalheim, Sara Foster and Patrick Williams.

Thank you to our many sponsors for their support, including Adidas Outdoor, Kampmeier & Knutsen PLLC, Smith & Lowney PLLC, Wright Yachts, Columbia Institute for Water PolicySouth Sound Group Sierra Club, Deschutes Estuary Restoration TeamLaw Offices of M. Patrick Williams and Olympia Urban Waters League.


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.