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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.


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.


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.


Washington Water Watch: May 2017 Edition

In this issue, read about our upcoming Celebrate Water event and a bio of the Ralph Johnson awardee, John Osborn, meet our summer legal intern, learn about our latest victory on Icicle Creek, a recap on the Revelstoke, B.C. One River – Ethics Matter conference, and enjoy an update on the culvert case!

Read the May issue of Water Watch here.


Washington Water Watch: April 2017 Edition

In this issue, learn about WRIA 56 Hangman Creek in the latest post of the Watersheds to Watch blog series, learn about CELP’s upcoming participation in GiveBIG, sign up to paddle the Hanford Reach with John Roskelley, and meet our office puppies!

Read the April issue of Water Watch here.


CELP Receives $200,000 from Columbia Riverkeeper Lawsuit Settlement

by Trish Rolfe

CELP has a long history of working to protect the Columbia River Watershed, and now thanks to Columbia Riverkeeper, we can do even more work. Last week the Federal District Court for the Eastern District of Washington entered an agreement settling a Clean Water Act case between Columbia Riverkeeper and Sandvik Special Metals, LLC.

This case began in 2015, after Sandvik reported that it discharged more ammonia and fluoride into the Columbia River than the company’s water pollution permit allowed. Under the agreement, Sandvik will update its water pollution control technology and fund several substantial projects to improve water quality in the Columbia River and its tributaries in Eastern Washington.

CELP was selected to receive funding from this settlement to work protect and restore streamflow and water quality in the mid-Columbia River basin to support endangered salmon and steelhead, other aquatic life, and recreational opportunities. The Columbia River, many of its tributaries, and their aquatic resources are negatively impacted by low or altered streamflow. Low streamflow causes or exacerbates many of the water quality problems that impact aquatic life in the Columbia River basin, such as high water temperatures, low dissolved oxygen levels, and high concentrations of pollutants.

CELP’s work to protect water quantity and streamflow in the mid-Columbia basin will consist of:

2. CELP’s Mid-Columbia Basin Instream Flows Initiative

Water quantity and water quality are closely connected, especially with respect to water temperature. Setting enforceable minimum instream flow requirements in tributaries of the Columbia River will help protect water quality in these tributaries and ensure that endangered Columbia River salmon and steelhead have adequate spawning and rearing habitat. Increasing instream flow in Columbia River tributaries could also enhance thermal refugia in the mainstream Columbia River at the mouth of these tributaries, which are used by migrating adult salmon and steelhead.

The State of Washington is obligated, under statutory programs, the public trust doctrine, and U.S.-Tribal treaties, to protect and sustainably manage river flows. Since 1969, state law has explicitly directed state agencies to adopt rules to protect instream flows for public benefit in each watershed. Nonetheless, formal instream flow protections have been adopted for only one-third of Washington’s watershed. Many of the remaining unprotected watersheds are tributaries to the Mid-Columbia River in central Washington.

CELP’s Mid-Columbia Basin Instream Flows Initiative would examine which Columbia River tributaries in central Washington currently do not have mandated minimum instream flows. Some of the unprotected tributaries in the Mid-Columbia basin include the Wind, White Salmon, Klickitat, Palouse, Pend Oreille, and Sanpoil rivers, and Rock and Glade creeks.

2. CELP’s Ethics & Treaty Project

CELP’s Ethics & Treaty Project focuses on working with tribes and conservation organizations to advocate for modernizing the Columbia River Treaty. The mission of CELP’s Ethics & Treaty Project is to modernize the Columbia River Treaty to promote the common good through stewardship and justice, while encouraging respectful dialogue and an international water ethic for the Columbia River.

Specifically, CELP seeks to support efforts to include “ecosystem-based function” as a new primary purpose of a re-negotiated Columbia River Treaty, on equal footing with the Treaty’s two current purposes: hydropower and flood risk management. As part of this effort, we would support work to restore fish passage to the Upper Columbia River, including all watersheds where salmon historically migrated, including the Spokane and Pend Oreille River basins.

CELP’s Ethics & Treaty Project will continue to focus on public outreach and education. Thus far, we have hosted Ethics & Treaty conferences all over the Pacific Northwest and Canada, and we hope to host several more in the coming years in Montana and in British Columbia. We will also host roundtable calls to connect tribes, conservation groups, and citizens from Canada & the U.S. who are interested in modernizing the treaty. Facilitating these outreach and organizing activities across several western states and provinces requires a significant commitment of staff time and resources. This funding would allow CELP to intensify and extend its Ethics & Treaty Project to advocate on both sides of the border for a re-negotiated Columbia River Treaty that recognizes the importance of maintaining the Columbia’s ecosystem-based function.

Read more about the case in the Tri-City Herald.


January 2017 Edition of Washington Water Watch

Check out the latest edition of our monthly newsletter, Washington Water Watch. In this month’s issue you’ll find an article on the current water bills in the Washington State legislature, an update on CELP’s recent motion for summary judgment in the Leavenworth National fish hatchery case, an article on the Lyre-Hoko watershed, and a notice about our upcoming Spokane event, Winter Waters.

Read the January 2017 issue of Washington Water Watch here.


Court Upholds Dungeness Instream Flow Rule that protects River and Fish

News Release
October 25, 2016

 

Contact:

Dan Von Seggern (Center for Environmental Law & Policy)
206.829-8299
dvonseggern@celp.org


 

Court Upholds Dungeness Instream Flow Rule that protects river and fish!

Seattle, WA – On Friday, October 21, 2016, Thurston County Superior Court Judge Gary Tabor upheld the Instream Flow Rule for the Dungeness River basin, denying a challenge from a group of property owners and developers.  The Center for Environmental Law and Policy (CELP) intervened in this matter to defend the Rule, working with the Department of Ecology.  CELP Staff Attorney Dan Von Seggern argued the case along with Ecology’s attorneys.  After the decision, he stated:  “This is a win for the environment and for water management in Washington.  The Dungeness Rule strikes a balance by protecting streamflows, fish, and senior water users, while still providing water for responsible development.  CELP is pleased with Judge Tabor’s decision and hope that this Rule will provide a guide to protecting other rivers in our state.”

In upholding the Rule, Judge Tabor held that the Rule was not unlawful and that Ecology did not exceed its authority when it adopted the Rule.  He also reaffirmed that permit-exempt wells are subject to the “first-in-time” system of water appropriations used in Washington.

The Dungeness River is home to steelhead, bull trout, and four salmon species.  Most of these fish are listed as “Threatened” under the Endangered Species Act.  Low river flows, particularly in summer and early fall, block upstream migration of spawning salmon and risk causing extinction of these fish.  Historically, much of the River’s flow has been diverted for irrigation, although irrigators have agreed to limit withdrawals to no more than one-half of the river’s summer flow.  Uncontrolled development using private (“permit-exempt”) wells further depleted streamflows and added to the pressure on fish populations. The Dungeness Rule protects instream flows that are needed to support salmon populations and other instream values, while allowing new residential development through mitigated use of water from permit-exempt wells.

The Dungeness watershed is in the rain shadow of the Olympic Mountains and is unique in the Northwest as the only coastal watershed that is dry enough to require irrigation for agricultural crops.  The River is relatively short, flowing 32 miles from the Olympic Mountains to the Strait.  It is used by chinook, coho, chum, and pink salmon as well as steelhead, cutthroat, and bull trout.  All salmon stocks are depressed relative to historic levels, and chinook, chum salmon and bull trout are listed as Threatened under the ESA.  Insufficient stream flow has been identified as a key cause of reduced fish levels.

The Dungeness Rule was developed over a 20-year period through a collaborative process that included state, local, and Tribal governments, property owners, environmental groups, and water users. “This rule is an example of how rules can be set to make sure water resources in the rivers and streams are protected,” said Trish Rolfe, CELP’s Executive Director.

Water for development is provided through a water bank, which ensures that streamflows are not depleted by water for development.  Amanda Cronin of Washington Water Trust explains that the Dungeness Water Exchange “provides an efficient one-stop shop for individual home builders in the Dungeness Valley.  Eligible homebuilders simply begin the building permit process at the County and then submit a mitigation application and one-time payment to the Exchange.”

Judge Tabor ruled from the bench and a written decision is expected in the coming weeks. The case is Bassett et al. v. Ecology, Thurston County case No. 14-2-02466-2.

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Dungeness River © Steve Farquhar

 

 

 

 

 

 

 

 

 

 

 

 

 


Washington Water Watch: August Edition

The August issue of Washington Water Watch is here! Check it out for an article online casino jolietta on Spokane recreation business ROW, a spotlight on CELP volunteer Gwyn Perry, an update on the Spokane River PCB case, gardening with native plants, and more!

Read Washington Water Watch: August.