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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.


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.


Washington Water Watch: January 2018 Edition

In this issue, an article on the flawed “Hirst fix” recently passed by the WA State Legislature, an update on the Leavenworth Hatchery case, an in-depth article on the real impact of permit-exempt wells and the Hirst fix, the save the date for Winter Waters Event in March, and more.

Read the January 2018 issue of Washington Watch Watch here.