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.


Patagonia to host Tribal film

Film:  United by Water

July 12,  7 p.m.  Patagonia Seattle  2100 1st Ave, Seattle 

RSVP BEFORE and receive a free raffle ticket at the door.


  • Orcas depend on Columbia River salmon for survival. 
  • Seattle is powered partly by Columbia River dams. 
  • The Trump and Trudeau Administrations are excluding tribes, First Nations from treaty negotiations about the future of the Columbia River. 
  • This film is timely, and we encourage you to attend and meet with tribal leaders.  Indigenous people need our help.

“The River is sacred.  People will put aside their differences when it comes to the River and bringing back the salmon.”

                 – the late Virgil Seymour (1958 – 2016) Arrow Lakes (Sinixt) Facilitator for The Confederated Tribes of the Colville Reservation

Upper Columbia United Tribes (UCUT) presents this documentary about canoe journeys on the Upper Columbia River, using dugout canoes from 800-hundred-year-old cedar logs, and the emotional historic landing at Kettle Falls, among the world’s richest salmon-fishing sites flooded when Grand Coulee Dam was constructed. 

DR Michel and John Sirois of UCUT will talk about work of tribes (US) and First Nations (Canada), including the need for Columbia River tribes to be at the negotiation table as the U.S. Dept of State re-negotiates with Canada the Columbia River Treaty.  Negotiations began May 29 in Washington DC.  We’ll have postcards to write/send to our Congressional representatives, asking them to hold accountable the State Department to give tribes a place at the table, and give a voice to the River and salmon. We hope to see you there.

Watch the trailer.


More about “United by Water”

76 years after the Ceremony of Tears, and the last salmon at Kettle Falls – United by Water reaches back, reconnecting with time immemorial to help us unite together for the River and for salmon.

On June 14, 1940, thousands of Native Americans from throughout the Northwest gathered at Kettle Falls – thunderous waterfalls and one of the world’s richest salmon fishing sites – for a three-day “Ceremony of Tears” to mourn the loss of their ancestral fishing grounds, soon to be flooded by Grand Coulee Dam on the Columbia River.  “United by Water” documents the journey of five tribal communities to Kettle Falls, the fishing site of their ancestors, in the growing struggle to return salmon to the Upper Columbia and reclaim the lives and future for indigenous people.

The film, produced by the Upper Columbia United Tribes, headquartered in Spokane, shows breathtaking archival footage of the last salmon ceremony on the Columbia prior to the construction of the Grand Coulee Dam. It then documents the inspiring 2016 journey on the river – the building of the dugout canoes, the physical and spiritual journey on the Columbia River, and finally the emotional historic landing at Kettle Falls.

United by Water will show at Patagonia Seattle on July 12, 7 p.m.

Representatives from the Upper Columbia United Tribes who appear in the film, D.R. Michel and John Sirois, will speak after the screening about their work, the renegotiation of the Columbia River Treaty, the impact of the dams on salmon, and the annual canoe journeys on the River, utilizing dug out canoes.

UCUT.jpg

The award-winning documentary highlights the need to recognize the importance of reconnecting to the Columbia River and restoring salmon runs. Not only does the film bring attention to the historic wrongs that blocked salmon from the Upper Columbia River, but it shares the current efforts by UCUT and other tribes (US) and First Nations (Canada) to bring forward tribal traditions to help better understand what is lacking in our contemporary society. We need to forge a deeper connection to the waters that bring life to our communities.

The film comes at a critical time as the US government has begun renegotiating the Columbia River Treaty and indigenous nations are advocating to the U.S. State Department their rightful place at the negotiation table to give voice to the Columbia River, salmon, and people of the river.

Partners of this film screening include the Upper Columbia United Tribes, Center for Environmental Law and Policy, Sierra Club’s Columbia River Future Project, Save Our Wild Salmon, Columbia Institute for Water Policy, and the Backbone Campaign.  Admission is by donation to the Backbone Campaign, with no one turned away for lack of funds.   Proceeds will help go to support the Tribes’ River Warriors project.

Film co-sponsored by:

 

 

 


Remembering Vanport Flood’s double tragedy

News Release: May 23, 2018

4:05 p.m. Memorial Day: A moment of silence to remember the double tragedy of the Vanport Flood

Canadians, impacted by resulting Treaty, ask Americans to rethink flood risk management in the lower Columbia River Basin

Canadian-United States Treaty Negotiations to start May 29 – the day following Vanport Flood memorial

Reporter Contacts:

Without warning, on Memorial Day 1948, a combination of heavy winter snowfall, warm temperatures, and spring rainfall sent torrents down the Columbia River, breaking through a railroad embankment serving as a levee, and destroying Oregon’s second largest city, Vanport, near Portland. Built in the floodplain of the Columbia River close to the confluence with the Willamette River, Vanport provided housing for thousands of low-income people. The floodwaters killed at least fifteen people, left 18,000 others homeless, and washed away the community.

The governments of the United States and Canada seized on the Vanport flood to promote a treaty that would authorize dams upstream in British Columbia and Montana, eventually forcing thousands of residents from their homes, and permanently flooding vast river valleys of the Upper Columbia River Basin. Particularly devastating for indigenous people who had lived in the Columbia River Valley for thousands of years was loss of burial grounds and cultural sites, compounding the loss of massive salmon runs caused by Grand Coulee dam. And now, on the 70th anniversary of the Vanport Flood, the United States and Canada are entering into negotiations to modernize that agreement known as the Columbia River Treaty.

“Recognizing the double tragedy impacting thousands of people in Vanport and subsequently in our Canadian and First Nations communities in the Upper Columbia River, we ask for a moment of silence on Memorial Day,” said Mindy Smith, a physician living near Trail, British Columbia. “We also ask that each Memorial Day going forward, we pause to remember and reflect on this double disaster and how people of the Basin are bound together by more than a treaty, but by our need and responsibility to seek equity of benefits and costs in river management.”

The Vanport Flood and its devastating consequences for the upper Columbia River Basin was the focus of a 2016 conference, One River – Ethics Matter, hosted by the University of Portland. This was part of the conference series of Columbia River reconciliation based on the 2001 Columbia River Pastoral Letter by the Roman Catholic Bishops of the international watershed. Highlights of the Portland conference focusing on the Vanport Flood can be viewed on a short film: Portland: One River – Ethics Matter.

“As negotiators for the United States and Canada prepare to sit down to discuss the future of the River, the double tragedy of the Vanport Flood needs to be remembered,” said Martin Carver of Nelson B.C. and coordinator of the Upper Columbia Basin Environmental Collaborative. “With continued floodplain development in the Portland area and elsewhere, and with escalating risks from climate change, the scope of the floodplain problem going forward will only increase.   Americans should not continue to rely on the devastation of upstream ecosystems and communities to allow for downstream floodplain development in Portland. That is fundamentally unjust and cannot be sustained.”

“The Columbia River is one river and ethics matter,” said John Osborn, physician and coordinator of the Columbia River Roundtable. “Past decisions have located people and structures in harm’s way by building in downriver floodplains while permanently flooding upriver valleys with dams and reservoirs – once biologically and culturally rich river valleys now wastelands. The Treaty dams are not going away. But we need to rethink dam management to improve river health and restore salmon runs while protecting communities. That is a compelling legacy of the Vanport Flood double tragedy.”

The moment of silence is scheduled for 4:05p.m. PDT on Memorial Day (U.S.)   The next day, May 29, in Washington D.C., the United States and Canada will begin formal negotiations to modernize the Columbia River Treaty. (link)

Links:

 

Vanport, Oregon – photo from BlackPast.org

 

 


Icicle Creek: a win for waters of Washington

News Release:  May 18, 2018

Fish Hatchery polluting Icicle Creek at center of ruling allowing Washington State to protect state waters

Contacts –

  • Dan Von Seggern, Center for Environmental Law & Policy (CELP),  dvonseggern@celp.org  206.829-8299
  • Kurt Beardslee, Wild Fish Conservancy, kurt@wildfishconservancy.org 425-788-1167

On May 14 the Washington Pollution Control Hearings Board (PCHB) ruled against the U.S. Fish and Wildlife Service (FWS), operator of the Leavenworth Fish Hatchery, and in favor of Icicle Creek advocates Center for Environmental Law & Policy (CELP) and Wild Fish Conservancy. Late last year, CELP and Wild Fish Conservancy appealed the state’s certification under Section 401 of the Clean Water Act for the federal hatchery to the PCHB. The FWS asked the PCHB to dismiss the appeal, arguing that state water quality certifications are not independently enforceable and cannot be effectively modified after a federal permit is issued, and therefore the challenge to the state certification was moot. The PCHB rejected the FWS argument. The PCHB concluded that state-issued Section 401 certifications are tailored to protect water quality in every state water body and are independently enforceable.

“This decision is a victory for protecting Washington’s waters,” said Dan Von Seggern, CELP staff attorney. “It affirms the State’s ability under the Clean Water Act to place meaningful conditions on a water user even where a Federal permit has been issued. The decision allows CELP and other water advocates to work through the courts to enforce these conditions.”

Icicle Creek flows out of the Alpine Lakes Wilderness through the Bavarian-themed town of Leavenworth, Washington, and supports important fisheries including endangered Chinook salmon and threatened steelhead.

“We commend the PCHB’s ruling against the US Fish and Wildlife Service’s Leavenworth National Fish Hatchery,” said Kurt Beardslee, director of Wild Fish Conservancy. “We believe State and Federal government facilities should be a positive example of environmental stewardship for the rest of the community. Unfortunately, this hatchery is not a good neighbor and has set a poor example. It is in fact the largest polluter of Icicle Creek.”

The Leavenworth National Hatchery was first constructed between 1939 and 1941 near Leavenworth, Washington, as a mitigation project for Grand Coulee dam. It is located on the banks of Icicle Creek approximately three miles from the confluence with the Wenatchee River. The hatchery has a long history of violating state and federal environmental laws, despite repeated attempts to bring it into compliance to protect Icicle Creek.

Wild Fish Conservancy and CELP are represented by Kampmeier & Knutsen, PLLC of Portland, OR.

Link:

Background

The U.S. Fish and Wildlife Service (USFWS) discharges a wide variety of pollutants into Icicle Creek from the federal hatchery located near Leavenworth, Washington. Pollutants released from the Hatchery to Icicle Creek include disease control chemicals, pathogens, nitrogen, phosphorus, antibiotics, chemicals used for disinfection and other fish culture purposes, residual chemical reagents, salts, and chlorinated water. The excess phosphorus discharged by the Hatchery has caused violations of the applicable water quality criterion for pH in lower Icicle Creek. This phosphorus loading also contributes to violations of water quality standards in the Wenatchee River.

The Clean Water Act is the main mechanism through which pollution of our waters is prevented, and the Hatchery is obligated to apply for a permit and to operate according to its conditions.

A National Pollutant Discharge Elimination System (NPDES) permit is required by the Federal Clean Water Act (CWA) and would place limits on pollutant discharges. States, using “401 certifications,” can compel the federal government to protect state waters. On July 28, 2017, the Washington Department of Ecology issued a draft Clean Water Act section 401 certification for a new permit. State certifications must include appropriate limitations and monitoring requirements to assure that the applicant for the Federal permit (USFWS) will comply with applicable effluent limits, prohibitions, standards of performance and appropriate requirements of state law.

For 37 years, the FWS operated the Leavenworth Fish Hatchery without a valid permit in violation of the Clean Water Act. On November 22, 2017 both a new federal permit and state 401 certification were issued. On December 21, CELP and Native Fish Conservancy appealed the state 401 certification to the PCHB. The federal permit was not appealed, and took effect on January 1, 2018. USFWS asked the PCHB to dismiss the appeal because Icicle Creek advocates had appealed the state certification, but not the federal permit.


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.