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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.

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.


WA State Legislature Passes Flawed “Hirst Fix”

by Dan Von Seggern

Our state legislature began this year’s session by passing a bill to remove the 2016 Whatcom County v. Western Washington Growth Management Hearings Board (“Hirst”) decision’s protections for groundwater and streamflows. Hirst reaffirmed existing law and required that counties ensure water is both physically and legally available before granting building permits.   This common-sense rule provided a critical check on withdrawals of groundwater that affect streams and rivers, and harm fish habitat.  Unrestricted groundwater withdrawals can impair the rights of senior water holders, including users of existing wells who are now seeing their wells go dry.  Worse yet, the bill takes a step towards reversing the Foster v. Ecology decision, which requires that impacts to streams be mitigated with replacement water, rather than with non-water (“out-of-kind”) habitat restoration projects.

Concerned that having to show that water was actually available could slow development in rural areas, counties, the building industry, and property rights groups pressured the Legislature to find a “fix.” On January 18, the Legislature passed a bill (ESSB 6091) that allows counties to approve building permits that rely on permit-exempt wells.

  • In WRIAs where Ecology has adopted an instream flow rule that specifically addresses permit-exempt wells (for example, WRIA 18, the Dungeness River), compliance with the applicable rule is sufficient to show water availability for a building permit.
  • Where Ecology has adopted a rule that does not speak to permit-exempt wells, a plan to restore and enhance streamflows is to be generated. In WRIAs that created watershed plans under the 1998 Watershed Act, the bill requires that these plans be updated to include projects to “measure, protect, and enhance streamflows,”   and to offset impacts of permit-exempt wells.
  • If no watershed plan was previously developed, the bill directs formation of “watershed restoration and enhancement committees” composed of stakeholders. These committees are heavily weighted towards stakeholders who have an interest in developing water, rather than preserving the resource, and CELP is concerned that they would not have adequate incentives to truly restore and enhance the streamflows.
  • In watersheds where Ecology has not yet adopted an instream flow rule, an applicant need only show that water is physically present (in other words, there is no requirement to mitigate or compensate for water use).   This is the situation in about half the state’s watersheds, including some that are experiencing high growth pressures such as the Cowlitz River (WRIA 26).

ESSB 6091 stresses a “watershed restoration and enhancement” approach, rather than requiring that water use from permit-exempt wells be mitigated.  While the goal of protecting and enhancing streamflow is a worthy one, this bill has significant flaws and will not provide adequate protection for streams, fish, or people who rely on them.  Development is essentially unrestricted in most areas until the new plans are completed (2019 – 2021).  The damage to streams will likely be done before any regulations are established.

ESSB 6091 also undermines mitigation of future water use by authorizing “out-of-kind” mitigation projects (such as streambank restoration or addition of large woody debris to a river channel; by definition, such projects do not provide replacement water) to compensate for new water uses, rather than requiring replacement water to maintain streamflows.  CELP believes that out-of-kind projects will become the path of least resistance in compensating for water use, and streamflows will inevitably be impaired.  Even the best habitat is of little use if there is insufficient water in the stream.

CELP is especially disappointed that ESSB 6091 lacks any metering provision, or any other method to determine how much water is actually used. Without metering, compliance with the limits in RCW 90.44.050 or with any limits set by the respective watershed committees cannot be verified, and there will be no way to know whether the impact of permit-exempt wells is actually being “offset.”   Because quantities cannot be verified, water use under this scheme is in practice unlimited.  Simply relying on users not to exceed allowable limits is poor policy and could make much of the watershed protections plans meaningless.

ESSB 6091 requires Ecology to conduct a pilot study of “the overall feasibility” of metering groundwater withdrawals (including permit-exempt wells) in the Dungeness (WRIA 18) and Kittitas county (WRIA 39) areas.  But no pilot project is needed.  Ecology’s rules in these areas already require that new permit-exempt wells be metered, and metering has already proven feasible. Rather than directing Ecology to waste time and resources on these studies, a better approach would be to require metering on all new permit-exempt wells, so that the data needed to ensure that streamflow impacts are compensated for can be gathered.

Finally, ESSB 6091 establishes a legislative “task force” with the mission of identifying changes in law to effectively overturn the Supreme Court’s 2015 Foster v. Ecology decision.  Foster held that water use that impairs an instream flow or other senior water right must be mitigated by providing substitute water at an appropriate place and time.  This provided important protections for salmon, which depend on water being present in streams at the time it is needed for migration, spawning, and rearing.  The bill authorizes a list of pilot projects that appear intended to demonstrate out-of-time, out-of -place, or out-of-kind mitigation.  CELP is concerned that this provision is designed to reach a preordained conclusion that out-of-kind mitigation is acceptable, and to pave the way for its broader use.  The consequences to Washington’s rivers and the fish that depend on them may be disastrous.


“Hirst fix” bill bad for streams, salmon

Contact:

“Hirst fix” bill will harm streams, fish, and senior water users

Democratic majority fails to stand up to minority Republicans and protect rivers and salmon.

Seattle – The Washington Legislature today passed a sweeping permit-exempt well bill (SB 6091, the “Hirst fix”) that will have dire consequences for Washington’s endangered salmon and the people who depend on them. Most of our state’s rivers and streams are already imperiled due to low streamflows. It is well-established that pumping groundwater, including unregulated water withdrawals by “permit-exempt” wells, reduces streamflow. Rural development using permit-exempt wells has been happening at an accelerating pace, taking more and more water from streams and other senior users.

The 2016 Whatcom County v. Hirst decision was not new law. Hirst simply reaffirmed that new wells may not impair more senior water users, including instream flows. Special interests including the building industry and real estate agents pressured the Legislature to ignore the science and “fix” the decision so that rural sprawl could continue unimpeded. Today, Legislative Democrats gave in to that pressure. While this bill is styled as a “fix,” its real effect will be to allow more and more unmitigated water use. The results are predictable: lower streamflows, higher water temperatures, and fewer fish in the rivers.

Methods for mitigating water use and avoiding impacts on streamflows are well-established, and indeed are in use in several parts of the state. But the bill does not require mitigation; it provides for “watershed preservation and enhancement committees” which will develop projects to “offset water use by permit-exempt wells.” While well-intentioned, the committee process is unlikely to lead to fully mitigating water use. Worse yet, the bill fails to meaningfully limit water use or even to provide for metering of water use, so that we will never know how much water is actually being used. It is almost inevitable that senior users and rivers will be harmed.

Another provision of the bill is even more troubling: it calls for “pilot projects” allowing water to be taken from streams and mitigated using so-called “out-of-kind” mitigation (generally stream-related habitat projects) rather than actually protecting streamflows. This is especially egregious because this provision is not even aimed at Hirst, but at another decision holding that streamflows must be protected (Foster v. Ecology). Out of kind mitigation sets the stage for a huge water giveaway, with serious consequences to streams and fish.

“The best habitat in the world is worthless if there is not enough water in the streams,” said Dan Von Seggern, staff attorney for CELP. “As mitigation water becomes harder to find, it is inevitable that “out-of-kind” mitigation will become the path of least resistance. Ecology needs to live up to its obligation to protect instream resources by carefully monitoring the watershed committees and the “offset” schemes they develop.”

“We are disappointed in leadership in the Legislature that has allowed the capital budget to be held hostage to an issue that has nothing to do with the budget. This agreement will harm fish, senior water right holders, and tribes. We expected better” said Trish Rolfe, CELP’s Executive Director.

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Washington Water Watch: November Edition

In this issue, an article on recent victory in court on the Leavenworth Hatchery Clean Water Act Case, a story on CELP’s founding director, Rachael Osborn, being recognized by AWRA-WA with their award for Outstanding Contribution to Water Resources, a welcome to CELP’s newest staff member, Emma Kilkelly, information about our December CLE, and more.

Read the November edition of Washington Water Watch here.


Washington Water Watch: June 2017 Edition

In this issue, find pictures of our recent Celebrate Water event, an update on the Spokane River rule, links to CELP’s Columbia River Treaty media and document library, and an opportunity to speak up for the Hanford Reach National Monument!

Read the June issue of Water Watch here.


Protecting Spokane River summertime flows goes to court

News Advisory – Court hearing on June 9

Contacts:

  • Dan Von Seggern, Center for Environmental Law & Policy, (206) 829-8299, dvonseggern@celp.org
  • Andrew Hawley, Western Environmental Law Center, (206) 487-7250, hawley@westernlaw.org
  • John Roskelley, Center for Environmental Law & Policy, (509) 954-5653 john@johnroskelley.com
  • Thomas O’Keefe, American Whitewater, (425) 417-9012 okeefe@americanwhitewater.org
  • Tom Soeldner, Sierra Club, Upper Columbia River Group, (509) 270-6995 waltsoe@gmail.com

Next step in process essential for future of river and Spokane community

Issue: When water is flowing in the Spokane River during hot summer months, should the River’s water be protected for community recreational and aesthetic use and river fish and wildlife — or should it be available to be taken from the River by the State Dept of Ecology through the granting of water rights?

State court: Thurston County Superior Court, Hon. James Dixon, Judge.

Where: Thurston County Courthouse, 2000 Lakeridge Drive, Olympia

When: Friday, June 9 1:30 PM.

Spokane River issues before the court

The beloved Spokane River flows through the second largest city in Washington state, including spectacular waterfalls and a deep gorge. In most summers, enough water flows in the River to support fishing, river rafting, and other outdoor recreation. River advocates asking the Court to hold the Department of Ecology to its duty to protect fish and wildlife, scenic, aesthetic and recreational values, and navigation, when establishing the minimum summer flows allowable for the Spokane River.

Overwhelming public support…ignored

Nearly 2,000 comments, including boater surveys and aesthetic inventories, were submitted to the Department of Ecology during the public comment period on the draft rule. In setting instream flows, the Department of Ecology’s decision failed to take into account boaters who use the Spokane River, fishermen who pursue the river’s wild redband trout, and businesses that depend on Spokane River recreation. Ecology also failed to conduct a basic assessment of the scenic values of the Spokane River as it flows through the gorge and Riverside State Park – important to users of the Centennial Trail and others.

Overall the state agency ignored all public comments in support of protecting the Spokane River and adopted unchanged its flow rule of 850 cubic feet per second (CFS) – near-drought level river flows that will jeopardize the Spokane River and its public uses.

Need to protect recreational use of the Spokane River

River advocates retained Dr. Doug Whittaker and Dr. Bo Shelby, experts in recreation and aesthetic flows from Confluence Research and Consulting, to evaluate appropriate flows. Dr. Shelby and Dr. Whittaker participated in establishing aesthetic flows for Spokane Falls, and are the foremost national experts on flows. They concluded that the Department of Ecology’s adopted flows are inadequate to support most types of recreational boating on the river. Higher flows in the Spokane River, when available, should be protected.

Fish need water

Spokane River fisheries need cold, abundant water. The Department of Ecology erred in concluding that more water is bad for fish, thereby justifying its decision not to protect Spokane River flows. In response, petitioners submitted a report prepared by Prof. Allan Scholz, retired Eastern Washington University fisheries biologist and professor. (Prof. Scholz is author of a multivolume treatise on Eastern Washington fisheries, and is one of the foremost experts on Spokane River redband trout.)

Prof. Scholz determined that the state’s flow rule – setting the Spokane River flow rate below the Monroe Street Dam in the summer at 850 CFS – is inadequate to protect and restore a healthy redband trout population, and that the scientific study prepared in support of the rate was flawed. The Department of Ecology could have accommodated the needs of river recreationists and fish without sacrificing fish.

Protecting aesthetics in the city’s heart

“Our city owes its origins, its beauty, and a great deal of its past and present life to the Spokane River,” said Tom Soeldner, co-chair of Sierra Club’s Upper Columbia River Group based in Spokane. “It would be a betrayal of the river and our identity if we did not maintain healthy and aesthetic river flows.”

Flows not protected in the flow rule are flows lost to the river

The Department of Ecology has a duty under state law and the public trust doctrine to adopt flows that are fully protective of all public instream values, including fish and wildlife, recreation, navigation, water quality, and scenic beauty. Again, flows that are not protected are at risk to be diverted from the Spokane River for out-of-stream water uses, including Idaho pumpers, the city of Spokane, and the office of the Columbia River’s Spokane-Rathdrum ASR project.

Appellants are Sierra Club, Center for Environmental Law & Policy and American Whitewater, and are represented by attorneys Dan Von Seggern (CELP) and  Andrew Hawley (WELC).

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