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.

Conservation groups ready to go to court over endangered species harmed by north-central Washington dam

Today, river advocacy groups notified federal agencies and a local public utility of their intent to sue over harm inflicted on Similkameen River endangered steelhead and threatened bull trout by Enloe Dam. New video evidence shows fish at the base of the dam unable to access stream areas above the dam that may be critical to their recovery. However, the Federal Energy Regulatory Commission (FERC), the National Marine Fisheries Service (NMFS), and the Okanogan Public Utility District (OPUD) have failed to reinitiate consultation to address how this new information affects a permit to construct a power generating facility at the dam. Today’s notice starts a 60-day clock until a lawsuit can be filed.

“This new evidence showing fish, most likely Chinook salmon, jumping at the base of Enloe Dam provides new evidence that FERC’s analysis that re-energizing Enloe Dam would have ‘no effect’ on the critically imperiled species that live in the river was incorrect,” said Andrew Hawley of the Western Environmental Law Center. “The upper Columbia River steelhead that use the Similkameen River for example are known to be better leapers than Chinook, and according to NMFS’s own biologists, it is very likely that steelhead are indeed navigating the falls below the dam. This fact requires a new analysis of the dam’s impacts under the Endangered Species Act.”

“This new information only adds to the body of evidence showing that leaving Enloe Dam in place is a mistake,” said Trish Rolfe, Executive Director of the Center for Environmental Law and Policy. “As we continue to look for ways to rehabilitate our flagging salmon and steelhead populations, it makes little sense to ignore the impact this project will have on the ability of these fish to access the 200 or so miles of viable habitat upstream of the dam.”

OPUD has faced strong local opposition to its plan to re-energize Enloe Dam due to environmental concerns as well as economic issues. Multiple economic analyses show that power generated by the project will cost far more than electricity from other sources, burdening ratepayers that live in one of the most economically disadvantaged counties in Washington. The PUD’s project would also continue to impact the culturally, ecologically and recreationally significant Similkameen Falls (also called Coyote Falls), which lies immediately downstream of the dam.

“The plight of Puget Sound orca starving for want of salmon combined with the fundamental lack of economic viability should lead to removing this century-old cement plug,” said John Osborn, physician and coordinator of Sierra Club’s Columbia River Future Project. “Fish jumping in vain at the base of Enloe Dam is yet another terrible reminder of federal agencies failing to make the correct diagnosis for salmon, steelhead, and other species in trouble.  Fortunately, the Governor’s Task Force on Orca is now looking at removing Enloe Dam – as has occurred for restoring the Elwha River on the Olympic Peninsula and other rivers in Washington state.”

“OPUD’s FERC license allows it to operate Enloe until 2063,” said Jere Gillespie of Columbiana. “To avoid red ink, OPUD will have no choice but to pass the costs along to the ratepayers into the next generation. What makes sense for the Similkameen and for ratepayers is to free the river of this cement plug and not throw good money after bad. It’s more compelling to restore the river. Coyote Falls is an increasingly important regional attraction because of an expanding local and regional trail system, and salmon can be seen swimming above waterfalls to the base of the damA free flowing Similkameen will enhance economic growth for the local community.”

The groups note that they have been and remain willing to work with the PUD to develop a path forward for restoring the river that addresses ecological and cultural issues and the economic concern for ratepayers. The Western Environmental Law Center sent the notice on behalf of the Center for Environmental Law & Policy, Columbiana, and Sierra Club.

Video of Chinook jumping at the base of the dam can be viewed here. Letters from NMFS and USFWS supporting reinitiating consultation are available here and here.

Contacts:

  • Andrew Hawley, Western Environmental Law Center, 206-487-7250, hawley@westernlaw.org
  • Trish Rolfe, Center for Environmental Law & Policy, 206-829-8299, trolfe@celp.org
  • John Osborn, Sierra Club, 509-939-1290, john@waterplanet.ws

Columbia River Treaty Negotiating Team out of step with Northwest Values

Sept 6 in Portland:

Northwest residents encouraged to speak with U.S. State Department at “Town Hall” meeting on future of the Columbia River and Treaty

Contact:

A broad coalition of conservation, sports, and fishing organizations today delivered a letter to the State Department asking for important changes to the 1964 Columbia River Treaty, which the United States and Canada are currently renegotiating. They are also encouraging residents to speak on behalf of the Columbia River’s future at a State Department “Townhall meeting” to be held in Portland on September 6, 5:30-7 p.m., at the Bonneville Power Administration.

“The renegotiation of the treaty offers a unique opportunity to improve conditions in the river by ensuring treaty dams are operated to provide sufficient flows for the express purpose of helping salmon and the river’s ecosystem,” said Greg Haller, Executive Director for Pacific Rivers. “River health, ‘Ecosystem-based function’ needs to be added to the Columbia River Treaty, co-equal with the two existing primary purposes of the treaty: hydropower production and flood risk management. Millions of residents and electrical ratepayers expect balanced management of the region’s hydroelectric facilities to ensure salmon populations recover and thrive. The treaty is an important prong of a basin-wide strategy for salmon recovery and we are asking the State Department for a course correction to improve river conditions in the U.S. and Canada for the benefit of fish, wildlife and people.”

In a letter sent to the lead negotiator, Jill Smail, U.S. Department of State, the requests include:

  • Protect and enhance the immense value of the Columbia Basin ecosystem by recognizing it as an authorized purpose of a modernized treaty, co-equal with flood risk management and hydropower generation.
  • Expand the group that oversees Treaty implementation, called the “U.S. Entity” to include appropriate representation for ecosystem function. Now the U.S. Entity consists only of Bonneville Power Administration (hydropower) and the Army Corps of Engineers (flood risk management).
  • Create advisory committees of affected stakeholders and sovereigns to support the U.S. Entity in treaty implementation.
  • Reform the U.S. negotiating team to ensure balanced representation of the issues involved, including giving a voice to Ecosystem-based Function.
  • Support a review of flood risk management that is essential for better managing the system of dams to protect river health while protecting Portland and Vancouver, Washington.
  • Restore the bi-national Collaborative Modeling Workgroup to establish a shared information based so that both nations together can make informed decisions about the Columbia River.  

The Columbia River Treaty was originally ratified in 1964 to reduce the risk of floods in downstream cities like Portland, Oregon and to develop additional hydropower capacity. The Treaty resulted in building four major dams, three in British Columbia and one in Montana. Notably, consideration of the health of the Columbia River and its fish and wildlife populations were not included in the original Treaty. Not only did the construction of the dams result in the displacement of people, economies and cultures as a result of permanently flooded lands, it had a profound effect on salmon and other fish and wildlife species – and the communities that rely on them – on both sides of the border.

“For 17 days the world watched as the mother orca Talequah carrying her dead calf for a thousand miles, reminding us how precious and fragile is life that depends on Columbia River salmon,” said John Osborn, a physician who coordinates Sierra Club’s Columbia River Future Project. “River temperatures are rising, returning salmon face ever more massive die-offs, glaciers are melting and forests are burning. In this time of climate change we call upon the State Department to represent the values of the people of the Northwest in protecting and restoring the Columbia River. Water is life. ”

At its heart, Ecosystem-based Function is a way to achieve a healthier river and healthier fish and wildlife populations. It means operational changes that provide additional water during low and moderate flow years in the spring and summer to increase survival of juvenile salmon migrating downstream to the Pacific Ocean. It also includes fish passage and reintroduction of salmon above Grand Coulee Dam and into Canada, and to stop using the Upper Columbia River as a sacrifice zone.

More about the U.S. State Department’s Town Hall meeting in Portland:

The Columbia River Treaty Town Hall meeting is open to the public, and will take place in Portland at the Bonneville Power Administration’s Rates Hearing Room 1201 Llyod Blvd, Suite 200 (11th Avenue/Holladay Park Max light rail stop), from 5:30 p.m. to 7:00 p.m.  This Townhall will follow the August 15–16 round of negotiations on the Treaty regime in British Columbia and take place in advance of the October 17–18 round of negotiations in Portland, Oregon.  For more information on the Town Hall, including call-in details, please see the Federal Register Notice.

Links:

 

 

 


State Dept “Town Hall” meeting on Columbia River Treaty, future

The United States and Canada are negotiating the Columbia River Treaty. We have a once in a lifetime opportunity to help protect and restore the Columbia River. On September 6, the U.S. State Department will give you an opportunity to provide input. Please take time to attend this Town Hall meeting – for the River and life that depends on the River.

When: Sept 6, 5:30 – 7 p.m.

Where: Portland, Bonneville Power Administration’s Rates Hearing Room, 1201 Llyod Blvd, Suite 200 (across the street from the current BPA Building)

Treaty Town Hall:  messages for the State Department

Below are suggested messages that may help you in developing your own personal message to deliver to the State Department’s negotiating team for the Columbia River Treaty:

RIGHTING HISTORIC WRONGS.  On June 14, 1940, 10,000 indigenous people from throughout the Northwest gathered at Kettle Falls for the “Ceremony of Tears” to mourn the loss of ancestral fishing grounds soon to be flooded by Grand Coulee dam. Adding Ecosystem-based Function to the Treaty as a primary purpose would include restoring salmon above Grand Coulee dam. (Credit: UW Special Collections)

(1) “Ecosystem-based Function” must be included as a new primary purpose of a new Columbia River Treaty – co-equal with power production and flood management. At its heart, ecosystem-based function is a way to achieve a healthier river and healthier fish and wildlife populations. It means operational changes that provide additional water during low and moderate flow years in the spring and summer to increase survival of juvenile salmon migrating downstream to the Pacific Ocean. It also includes fish passage and reintroduction of salmon above Grand Coulee Dam and into Canada.  The world watched as the mother orca Talequah carried her dead baby for 17 days 1,000 miles, calling attention to the starving orcas of Puget Sound — and once again underscoring the importance of Columbia River salmon. 

(2) The River needs a voice during Treaty negotiations.  The U.S. should add a representative for “ecosystem function” to the Treaty negotiating team. 

(3)  The U.S. and Canada have excluded tribes and First Nations from the negotiating teams — and this needs to be corrected.  Under the laws of both countries it is clear this this Treaty impacts the shared resources held by tribes in the U.S., as well as those resources in Canada to which rights and title have not been extinguished.

(4) The River needs a voice during Treaty implementation.  U.S. should add a new, third representative to the “U.S. Entity” that can represent the river’s ecosystem needs during treaty implementation.

The U.S. Entity today includes just two federal dam agencies – BPA and ACOE – neither has a record as a responsible steward of natural resources like wild salmon and steelhead, lamprey and other species. The U.S. Entity must include a new voice for the river and its health.

(5) Citizen input is needed.  The U.S. should create an advisory committee to the U.S. Entity that allows stakeholders to understand and share information about the operation of the Treaty dams, and their impacts on communities and natural resources.

(6) Make informed decisions using a shared, transparent information base.  Create a common analytic base between both nations and all those affected by re-establishing the collaborative modeling workgroup.

(7) We need best options for flood risk management.  Residents in the greater Portland and Vancouver metropolitan area want to understand the costs, benefits and tradeoffs from today’s flood management strategies – as well as possible alternatives. In order to prepare, the U.S. Army Corps should conduct a basin-wide review of flood risk management.

*

For further Information, contact:


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.