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November/December Washington Water Watch Issue Is Out

Check out our newest issue of Washington Water Watch!

In this issue, you’ll find articles about Ecology’s Rural Water Supply Workgroup, the success of CELP’s December 3rd CLE event, and our most recent job opening. You will also be introduced to our new Board Chair and Vice Chair, Daryl Williams and John Roskelley, enjoy the poetry of Tina Wynecoop, and more.


Washington Supreme Court protects water flowing in streams

Decision part of growing concern about Department of Ecology mismanaging state’s waters in face of climate change

Deschutes River - Photo from WA Dept of Ecology

Deschutes River – Photo from WA Dept of Ecology

On October 8th, the Washington State Supreme Court ruled 6-3 against Ecology’s approval of the City of Yelm’s new water right because the new right would impair existing instream flows in local streams and the Nisqually River. The Court concluded that the state agency’s decision was unlawful because Ecology improperly used a narrow exception in the water code to issue the right, and because Ecology relied on out-of-kind mitigation measures to justify issuance of the water right.   The legal action brought by Sara Foster, a small farm owner in the City of Yelm, was filed in 2011 because of concerns that overpumping groundwater would adversely impact local waterways. This latest decision is set in the context of growing criticism about the Department of Ecology’s mismanagement of the state’s waters through historic over-allocation of water rights and in the face of climate change.

“The Supreme Court’s decision reaffirms the state’s responsibility to protect instream flows,” said Patrick Williams, attorney for Sara Foster. “The decision makes it clear that Ecology must abide by state water laws when approving new water rights.”

The Foster decision means 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.

“I’m thrilled with the decision because it means the water levels in streams in rivers I, and others, enjoy so much will be protected now and in the future,” said Sara Foster, plaintiff in the case.

The Foster decision reaffirms a 2013 Supreme Court decision in a case brought by the Swinomish Indian Tribal Community to protect stream flows in the Skagit River basin. In Swinomish, the Court held that Ecology could not use the narrow water code exemption permanently impair existing instream flows through water reservations for future use. Pursuant to today’s decision, Ecology cannot issue individual water rights that would impact instream flows. Together, Swinomish and Foster underscore that Ecology cannot continue to deplete river flows to meet future water demand.

“It is time for the state to look at water efficiency and conservation and water reuse for new sources of water instead of taking water from instream flows,” added Williams. “The water frontier is over.”

The Foster decision also holds that Ecology may not use non-water environmental restoration projects as a basis for issuing water rights. Ecology has issued a handful of water right decisions allowing river depletion in exchange for activities such as wetland restoration, floodplain easements, placement of large woody debris in rivers, and monetary payments.

“Ecology is increasingly relying on “out-of-kind” mitigation projects as a basis for issuing new water rights,” said Rachael Paschal Osborn, senior policy adviser for the Center for Environmental Law & Policy. “Today the Court has clarified that habitat projects or monetary payments cannot substitute for water. This is a very good decision for Washington’s over-allocated and much-depleted rivers and aquifers.”

The Center for Environmental Law & Policy provided support to Sara Foster through its Water Rights 9-1-1 program helping citizens struggling with water resource issues, and filed a “friend of the court” brief in the case.


CELP Files Legal Action to Stop Pollution from Leavenworth Hatchery

For 36 years, federal hatchery has been illegally polluting Icicle Creek

Leavenworth National Fish Hatchery - photo by John OsbornTuesday September 29, 2015 – Today, the Center for Environmental Law & Policy (CELP) and Wild Fish Conservancy announced they filed legal action to compel the U.S. Fish & Wildlife Service (FWS) to clean-up the Leavenworth National Fish Hatchery now polluting Icicle Creek.

FWS discharges a wide variety of pollutants into Icicle Creek from the federal hatchery located near Leavenworth, Washington, without a National Pollutant Discharge Elimination System (NPDES) permit. An NPDES permit is required by the Federal Clean Water Act (CWA) and would place limits on pollutant discharges. The Hatchery’s permit expired in 1979, and for the past thirty-six years FWS has operated the hatchery in violation of the CWA. Despite repeated requests over many years to update the Hatchery’s operations, including a 60-day notice filed in July, federal officials have continued to operate the facility without obtaining a new permit.

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.

Icicle Creek - photo by John Osborn

Icicle Creek – photo by John Osborn

“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,” said Dan Von Seggern, staff attorney for CELP. “Filing a lawsuit is a last resort. However, a great deal of effort by many groups and individuals to get the Hatchery to obey the law has been unsuccessful. This litigation is aimed at ensuring that the federal agency carries out its work to augment salmon runs without harming Icicle Creek.”

“By not having a current NPDES permit, the Leavenworth National Fish Hatchery has been in violation of the Clean Water Act for thirty five years,” said Kurt Beardslee, executive director of Wild Fish Conservancy. “Over the past fifteen years we have worked with local citizens and representatives of state, federal, and tribal agencies to try to get the Leavenworth Hatchery to comply with state and federal law to protect and restore native fish species listed under the Endangered Species Act and to restore the integrity of the Icicle Creek ecosystem. It is discouraging to realize that yet again the Hatchery blatantly disregards its legal obligations and the needs of the Icicle Creek ecosystem. The saddest part of this is the public is unknowingly paying for it.”

The Leavenworth National Hatchery was constructed between 1939 and 1941 near Leavenworth, Washington, and is located on the banks of Icicle Creek approximately three miles from the river’s confluence with the Wenatchee River. The federal hatchery has a long history of violations of federal environmental laws. Despite repeated attempts, including litigation, the federal facility continues to be in violation of federal laws, notably the Clean Water Act and Endangered Species Act.

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

Link –

Contacts –

  • Dan Von Seggern, Center for Environmental Law & Policy, 206.829-8299
  • Contact: Kurt Beardslee, Wild Fish Conservancy, 425-788-1167
  • Brian Knutsen, Kampmeier & Knutsen, PLLC, 503-841-6515

Leavenworth Hatchery Violating Clean Water Act

Leavenworth National Fish Hatchery - photo by John Osborn

Leavenworth National Fish Hatchery – photo by John Osborn

Today, the Center for Environmental Law & Policy (CELP) and Wild Fish Conservancy sent a 60-day Notice of Intent to sue to the United States Fish and Wildlife Service (FWS) and Daniel M. Ashe in his official capacity as the Director of FWS for violations of the Clean Water Act (CWA) associated with the Leavenworth National Fish Hatchery.

FWS is discharging pollutants into Icicle Creek from the Hatchery without a National Pollutant Discharge Elimination System (NPDES) permit which is in direct violation of section 301(a) of the CWA. FWS has not held a NPDES permit for the Hatchery since August 31, 1979.

“Federal law requires the Hatchery to operate in a manner that protects Icicle Creek and downstream waters from pollution,” said Dan Von Seggern, staff attorney for CELP. “Compliance with the Clean Water Act will preserve these water resources while allowing the Hatchery to continue to augment salmon runs.”

Icicle Creek - photo by John Osborn

Icicle Creek – photo by John Osborn

Pollutants released from the Hatchery to Icicle Creek include but are not limited to: disease control chemicals, pathogens, nitrogen, phosphorus, antibiotics, chemicals used for disinfection and other fish culture purposes, residual chemical reagents and salt and chlorinated water. The wastewater discharged by the Hatchery contains excess phosphorus and violations of the applicable water quality criterion for pH have been recorded in lower Icicle Creek as a result. This phosphorus loading also contributes to violations of water quality standards in the Wenatchee River.

“By not having a current NPDES permit, the Leavenworth National Fish Hatchery has been in violation of the Clean Water Act for thirty five years,” said Kurt Beardslee, executive director of Wild Fish Conservancy. “Over the past fifteen years we have worked with local citizens and representatives of state, federal, and tribal agencies to try to get the Leavenworth Hatchery to comply with state and federal law to protect and restore native fish species listed under the Endangered Species Act and to restore the integrity of the Icicle Creek ecosystem. It is discouraging to realize that yet again the Hatchery blatantly disregards its legal obligations and the needs of the Icicle Creek ecosystem. The saddest part of this is the public is unknowingly paying for it.”

The Leavenworth National Hatchery was constructed between 1939 and 1941 near Leavenworth, WA and is located on the banks of Icicle Creek approximately three miles from the river’s confluence with the Wenatchee River. The Hatchery has a long history of violations of federal environmental laws. Despite repeated attempts, including litigation, the facility continues to be in violation of the CWA and ESA.

The groups are represented by Kampmeier & Knutsen, PLLC of Portland, OR


June Edition of Washington Water Watch is Out!

The lower Columbia River, below Bonneville Dam - Photo by John Roskelley

The lower Columbia River, below Bonneville Dam – Photo by John Roskelley

Our June edition of Washington Water Watch is now available. Check it out here!

This month, we profile our new board member, Brady Johnson, discuss our intervention into a law suit filed that challenges the Dungeness Instream Flow Rule, update our work on the Columbia River Treaty negotiations, highlight a petition to restore Moxlie Creek and more.


May Edition of Washington Water Watch is Here!

Check out our May edition of Washington Water Watch – we discuss the EPA’s new Clean Water Rule, a report released in January 2015 by Earth Economics about Outdoor Recreation in WA, and give updates on litigation and CELP in the News.

Click here to view the newsletter.

Thanks to everyone who came the Celebrate Water on May 21!  - Photo by Jon Anscher Photography

Thanks to everyone who attended, sponsored and volunteered for Celebrate Water on May 21! – Photo by Jon Anscher Photography


Okanogan PUD Takes Steps To Explore Enloe Dam Removal

salmon jumping Similkameen Falls, Colton Miller, July 2014

Salmon jumping Similkameen Falls. (photo: Colton Miller, July 2014)

CELP and partners returned to court on Friday, April 3, to challenge a water right that could reduce water flowing in Similkameen Falls, in north central Washington, to a trickle. The Falls, located on the Similkameen River just downstream of Enloe dam, are a popular scenic attraction and have important cultural and ecological values.

Okanogan Public Utility District (OPUD) purchased Enloe dam in 1953, but has not generated power since 1958.  After two failed attempts to re-electrify the dam in the 1990’s, OPUD obtained a federal energy license in 2013.  CELP challenged the water quality certification and won a decision that the proposal to divert 90-99% of the natural flows around the waterfalls lacked scientific foundation.

After oral argument on the water right appeal, Judge Gary Tabor of Thurston Superior Court ruled from the bench in favor of the Department of Ecology and OPUD.  For CELP, the courtroom saga continues a 10-year effort to restore and protect the Similkameen River, including opposition to two new dam proposals, the Shankers Bend and the Fortis BC projects, that are sidelined for the time being.

Search is on for a lead agency to remove Enloe dam

One very positive development has occurred in the face of continued litigation and local ratepayer opposition to the project’s $50 million price tag.  On April 6, OPUD Commissioners passed a resolution indicating willingness to work with CELP and its conservation partners in finding a lead agency for Enloe dam removal.  Both the Lower Similkameen River Band in B.C. and the Confederated Colville Tribes have endorsed the concept of dam removal.

OPUD is exploring all options, including its original plan to re-energize Enloe.  However, the case in favor of dam removal is persuasive:

  • Re-energizing the dam will be a major money-loser for local ratepayers;
  • De-watering Similkameen Falls is illegal, and CELP’s water quality challenge creates significant uncertainty about the amount of water available for power generation; and
  • Removing Enloe dam will clear the way for salmon and other species to access 300-plus miles of river and stream habitat, a huge opportunity for both fish and people.
salmon blocked by Enloe dam, Colton Miller, July 2014

Salmon, blocked at Enloe dam. (photo: Colton Miller, July 2014)

The ongoing legal challenge

CELP, American Whitewater and North Cascades Conservation Council have challenged a decision by the Department of Ecology to issue a water right to the Okanogan PUD for renewed operation of Enloe dam.  The water right appeal raises two issues.  First, as Andrea Rodgers of the Western Environmental Law Center, puts it:  “Ecology is required to determine whether granting a water right will harm the public interest before issuing a permit. Here, they propose to defer that decision until after the project is built, violating the four-test requirement for allocation of public water resources.”

Attorney Rachael Paschal Osborn described the second argument in the case:  “The new water right for the dam fails to protect instream flows as adopted into the Similkameen River rule. This directly contradicts a 2013 Supreme Court decision regarding the Skagit River, holding that these rules function as ‘water rights for the river’ and may be violated only in the most narrow of circumstances.

Economic studies show that re-energizing Enloe Dam doesn’t make financial sense as is, and will be even more expensive if minimum flow releases are increased.  OPUD, having spent $12 million to obtain a federal energy license for the project, is placing ratepayer dollars at substantial risk.  Depending on the outcome of the aesthetic flow studies to protect Similkameen Falls, OPUD may have far less water to divert for hydropower than originally permitted.

The river advocacy groups in the legal challenge are all members of the Hydropower Reform Coalition, and are represented by public interest attorneys Andrea Rodgers of the Western Environmental Law Center and Rachael Paschal Osborn and Dan Von Seggern of CELP.

Links –

Conservationists’ Petition for Review


Washington Water Watch – March 2015 Edition

Columbia River, Hanford Reach - no credit

Hanford Reach of Columbia River

Don’t miss our March edition of Washington Water Watch!

Click here to see the PDF version of our newsletter.

This month you’ll find articles about CELP’s recent victory in our Spokane River PCB challenge, the positive outcome of our Columbia River challenge, updates on other water issues and the Legislative session, an introduction to our new Development and Outreach Coordinator, and more.

If you aren’t already signed up to receive our monthly newsletter, sign up at the bottom of the page.


Columbia River flows to be protected

Dept of Ecology responds to lawsuit, re-issues Trios/Easterday water right with river flow protections

Seattle – Today conservationists announced they will not appeal a revised water right issued by Washington Department of Ecology (Ecology) to Trios Health/Easterday Farms after Ecology amended the water right to protect Columbia River flows.   The earlier legal challenge of the water right focused on Ecology’s practice of issuing new water rights that deplete rivers by using “out-of-kind mitigation.”

“We are pleased that Ecology has abandoned ‘out-of-kind’ mitigation for this water right,” said Rachael Paschal Osborn, senior policy analyst for the Center for Environmental Law & Policy (CELP).  “Out-of-kind mitigation is illegal.  It threatens to de-water rivers statewide.”

The water right will irrigate 2000-3000 acres of land owned by Easterday Farms.  Kennewick General Hospital (now Trios Health) received title to the lands as a gift in 1980, but the lands lacked irrigation water.  Trios sold the land to Easterday Farms, contingent upon receiving a water right from the state.

In 2013, Ecology issued the water right, but without the instream flow protections routinely required for the Columbia River.  Rather than providing “bucket-for-bucket” mitigation to protect Columbia River flows, Ecology instead required a $6 million payment by Trios Health/Easterday to pay for habitat improvements in the Yakima and other watersheds.  The Okanogan Wilderness League and CELP appealed (see “background” section below), and the Pollution Control Hearings Board directed that the matter be sent to trial, requiring Ecology to prove that out-of-kind mitigation would actually offset the impacts to Columbia River flows.  Rather than going to trial, Ecology issued a new water right with instream flow and in-kind mitigation requirements.

“Rivers in Washington State, including the Columbia River, are already in trouble from too many water rights and withdrawals,” said Osborn.  “An honest appraisal of out-of-kind mitigation would show that habitat projects, whatever their merit, still fail to protect instream values, including fish, navigation, recreation, and scenic beauty.”

The new 2015 water right is conditioned on the Columbia River instream flow rule.  In addition, the $6 million to be paid by Easterday Farms will be used to purchase and retire existing water rights to directly offset impacts.

“It is not appropriate to exchange out-of-kind mitigation for water.  You can anchor a tree to the bottom of the river, but it won’t help if the river is dry,” added Osborn.  “If Ecology issues similar water rights in the future, CELP will have no choice to but to challenge.”

Background

The OWL/CELP 2013 appeal of the Kennewick Hospital/Trios/Easterday water right was based on the following issues:

– The water right would deplete flows in the impacted stretch of the Columbia River, violating the state’s own instream flow rule adopted to protect salmon migration.

– The mitigation projects generally would have had a short life-span, but the removal of water from the Columbia River would be perpetual and unending.

– The out-of-kind mitigation projects in the original water right would have been completed anyway, funded through federal and state programs to recover salmon.  This has turned out to be true – most of the one dozen habitat projects have been constructed.

– Washington water law does not authorize the state’s water agency to give away state waters in exchange for money or non-water mitigation.  There is growing public concern about financial mismanagement within the Department of Ecology, especially relating to the Office of the Columbia River that coordinated the Trios/Easterday water right.

CELP has worked to protect Columbia River flows for the past two decades.  In 2004 the National Academy of Sciences published its analysis on Columbia River flows, warning Washington State that water rights, water diversions for irrigated agriculture, flow adjustment for hydropower generation, and warming water temperatures from climate change threaten the survival of salmon and other fish and wildlife values.

Links to more background information:

The Unkindest Mitigation – how Ecology’s new water impairment ideas will hurt rivers and fish

CELP, Columbia River Vision, (Nov. 2000)

National Academies of Science, Managing the Columbia River:  Instream Flows, Water Withdrawals, and Salmon Survival


CELP prevails! Federal Court rules that Spokane River PCB Cleanup is Not Adequate

Spokane Falls

Spokane Falls

In Spokane, the U.S. District Court Judge Barbara Rothstein issued a decision today in the matter of Sierra Club and Center for Environmental Law & Policy (CELP) versus U.S. Environmental Protection Agency (EPA).  The Court ruled that EPA abused its discretion in agreeing to allow a polluter-dominated committee process substitute for a cleanup plan for Spokane River PCBs.  Sierra Club & CELP filed the citizen lawsuit against EPA in 2011.  The Spokane Tribe of Indians intervened in support of the lawsuit, and the Department of Ecology, Spokane County and Kaiser intervened to defend EPA.

“Today is a good day for the Spokane River,” said Matt Wynne, Spokane Tribal Councilman and Chairman of Upper Columbia United Tribes.  “Judge Rothstein confirmed that delay in cleaning up the River is unacceptable, and found that deadlines and pollution limits are necessary.”

In 2011, the Washington Department of Ecology reversed course and abandoned efforts to adopt a PCB cleanup plan, largely because of political opposition by Spokane River polluters, who would be required to reduce PCBs in effluent by up to 99% to meet both Washington State and Spokane Tribe water quality standards.  These polluters include Inland Empire Paper, Kaiser, and the Liberty Lake, Spokane County, and City of Spokane sewage treatment plants.  Instead, Ecology formed the Spokane River Toxics Task Force and required the polluters to participate, but also gave them control over the goals and activities of the Task Force.

“The Spokane River is Washington’s most polluted river when it comes to PCBs,” said Rachael Osborn, senior policy adviser for the CELP and Spokane River Project Coordinator for Sierra Club’s Upper Columbia River Group.  “Obtaining a PCB cleanup plan is essential to public health and especially important for people who eat fish from the Spokane River, including immigrant populations and Spokane Tribal members.”

“After years of delay on the part of the agencies, the Court today rejected the state’s ‘fox in chicken coop’ strategy of putting the polluters in charge of a cleanup plan,” Osborn continued, “Instead, the Court has ruled that a real cleanup plan, prepared within a reasonable timeframe, is required.”

THE FEDERAL COURT DECISION:

Today’s federal court decision finds that the Task Force is not a proper substitute for a Clean Water Act mandated TMDL, stating (at page 21):

There comes a point at which continual delay of a prioritized TMDL and detours to illusory alternatives ripen into a constructive submission that no action will be taken.  With the Task Force as presently proposed, Ecology is coming dangerously close to such a point, and with EPA’s support.   Accordingly, the Court finds that the EPA acted contrary to law in finding the Task Force, as it is currently comprised and described, a suitable “alternative” to the TMDL.

The court decision also dictates next steps, ordering EPA to report back to the Court within 120 days with a specific plan to complete a PCB TMDL (at page 22):

. . . EPA shall work with Ecology to create a definite schedule with concrete goals, including: clear statements on how the Task Force will assist in creating a PCB TMDL in the Spokane River by reducing scientific uncertainty; quantifiable metrics to measure progress toward that goal; regular checkpoints at which Ecology and the EPA will evaluate progress; a reasonable end date, at which time Ecology will finalize and submit the TMDL for the EPA’s approval or disapproval; and firm commitments to reduce PCB production from known sources in the interim.

ABOUT PCBs and TMDLs:

PCBs are a group of industrial compounds associated with liver dysfunction and cancer, and are now banned in the United States.   Washington State recognizes that the Spokane River is impaired for PCBs.  The Department of Ecology issues pollution permits (known as NPDES permits) to companies (such as Inland Empire Paper and Kaiser) and municipalities, allowing them to pollute the Spokane River up to certain thresholds.

The federal Clean Water Act requires a clean-up plan (called a TMDL or “total maximum daily load”) before issuing any permits that would add more PCBs to the Spokane River.  The Washington Department of Ecology is attempting to side-step the law by not preparing a PCB cleanup plan, and issuing NPDES permits anyway.


Sierra Club and CELP are also defending their victory in their 2011 challenge to the pollution discharge permit issues to Spokane County’s new sewage treatment plant.  In 2013, the Pollution Control Hearing Board (PCHB) ruled that the “state of the art” plant was discharging PCBs and had the potential to violate state and tribal water quality standards.  The PCHB directed Ecology to issue a new permit with appropriate pollution limits.  Instead of issuing such permit, Ecology and Spokane County appealed the matter to Thurston County Superior Court.  That court affirmed the PCHB in the fall of 2014.  Ecology and the County recently appealed the matter to the Court of Appeals.  The County continues to operate the plant, and to discharge PCBs into the Spokane River.

Sierra Club and CELP are represented by Richard Smith of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation.

Links –

Documents –