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CELP Hiring Staff Attorney

Center for Environmental Law and Policy (CELP), is seeking candidates for a full-time Staff Attorney. This position will focus on agency advocacy, public interest litigation, policy and legislative work, public outreach, and administrative support. Please see full job description here.

To apply please e-mail cover letter, resume, writing sample (not more than 10 pages), transcript, and references to Trish Rolfe at jobs@celp.org by February 15, 2015.


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

By Rachael Paschal Osborn

There’s a new set of euphemisms circulating at Ecology’s Water Resource Program. Terms like “redefining impairment” and “flexible mitigation authority” are the latest linguistic gems. Lift the lid, and you find proposals to grant new water rights in exchange for out-of-kind mitigation, that is, trading water for habitat improvement projects, real estate easements, large woody debris, and of course, money. These proposals are under discussion at the agency, in the courts, and likely soon, the Washington State Legislature.

The problem is age-old. Washington’s rivers are water scarce, particularly during the summer months, when rainfall is low, weather is hot, and native salmon and trout species need abundant, clean, cold water to survive. Subtract the hundreds of thousands of existing water rights and permit-exempt wells that already pump water out of our ecosystems, and it is tough to find a river or aquifer that has much water available to supply new development.

Fortunately, Washington has strong instream flow laws that require Ecology to protect the water flowing in rivers, at least what’s left. In 2013, in the case Swinomish Tribe v. Ecology, the Supreme Court held that instream flow rights are just like out-of-stream water rights, entitled to the same protections afforded to farms or cities. Regrettably, Ecology believes it has a duty to guarantee water supply for new development, and that the Swinomish ruling is a problem and must be overcome.

Because protecting instream flow constrains the issuance of new water rights, Ecology began several years ago to allow water right mitigation. It started off a little rocky – some readers may remember the Rube Goldberg-esque mitigation plan for the Battle Mountain Goldmine. But eventually the right ideas settled in. If a project proponent could offer water in exchange for a new right – by retiring an existing right, or obtaining water from a water bank – then the answer might be ‘yes’ rather than ‘no.’ Properly implemented, these are not bad ideas.

But, water-for-water mitigation can be difficult to come by, or expensive. So, to help out would-be water users, Ecology invented a new idea: “out-of-kind mitigation.” It first appeared in Water Resource Program Policy No. POL-2035 (Evaluating Mitigation Plans) adopted in February 2013.

POL-2035 identifies a mitigation hierarchy. First, mitigation for a water right should be in-kind, that is, a water for water trade. Ideally, the replacement water should be in the same place at the same time as the water that’s being used. But, if that’s not possible, then replacement water could be less than perfectly matched to time and place of impact.

And if that’s not possible, then replacement water could be something other than water, i.e., out-of-kind mitigation. POL-2035 defines out-of-kind mitigation as “making water quality or habitat improvements, removing fish barriers, or providing other non-water improvements,” including “monetary investment strategies.”

This is as good as gold for water users. If all you need to do to get a water right is fund a fish project, or buy an easement, or just hand over some money to Ecology, then “bob’s your uncle.”

The problem, of course, is that at some point, there’s no more water. Or so little water that aquatic habitat is destroyed. It doesn’t matter if there’s a tree anchored to the bottom of the river, if the river is dry.

Ecology has already used out-of-kind mitigation to justify new water rights. The City of Yelm water right trades direct impacts to instream flows in the Nisqually River for purchase of a wetland in the Deschutes River basin. An appeal of that decision, Foster v. Yelm, is pending in the Supreme Court.

And then there’s the water right issued to Kennewick Hospital, which promptly re-sold it to Easterday Farms. In exchange for 4,000 acre-feet of water out of the Columbia River, Easterday will pay $140,000 per year over a 43 year period (a total of $6 million) to Ecology’s Office of the Columbia River or OCR. In exchange, OCR is funding eleven habitat projects in several tributaries. These projects include floodplain restoration projects, de-commissioning one road and repairing another, engineering a logjam in the Cle Elum River, etc., etc. OCR is also “scoping” two projects involving fish ladders and irrigation efficiency.

It’s a real smorgasbord. The only thing missing is water.

Okanogan Wilderness League and CELP are challenging the Kennewick/Easterday water right, including whether Ecology has authority to trade out-of-kind mitigation for water rights. The PCHB has scheduled the matter for hearing in May. The legal issue as re-cast by the Board is:

“Does the permit provide adequate conditions [i.e., the out-of-kind mitigation projects] that will retain base flows to preserve the instream flow values enunciated in RCW 90.54.020(3), and to protect such values from impairment, considering cumulative impacts to the flows of the Columbia River given additional appropriations?”

It’s a mouthful. What’s being asked is this: can out-of-kind projects really substitute for instream flows? By their nature, CELP says no. It’s apples and oranges, rolling at warp speed down a slippery slope. But Ecology’s defense is that the out-of-kind projects are so good for fish in the tributaries that the benefits outweigh any harm that might be caused by removing more water from the Columbia River. Stay tuned on this one.

But that’s not all. All this hard thinking about out-of-kind mitigation at the legal level gave Ecology a new idea. They call it “re-defining impairment.” Ecology thinks instream flows are getting too much deference. That dratted 2013 Swinomish case said that instream flow rights must be treated like all other water rights – fully protected from impairment. What if we simply change what impairment means? (But only for instream rights, certainly not for real water users.)

According to Ecology’s recent message to the legislature, re-defining impairment would mean evaluating harm to rivers in terms of lost habitat rather than quantitative water depletion. This, of course, would then justify the use of, you guessed it, out-of-kind mitigation.

We know from experience that wetland and shoreline mitigation projects are often not successful.  (A 2002 evaluation of wetland mitigation found 50% success rate.)  Why Ecology thinks that this type of approach could adequately replace water rights is a true mystery.

We also know that human ingenuity can solve water supply problems. Conservation, cisterns, extension of public supply lines, and water banks are examples of sustainable solutions already in successful use around Washington.

Out-of-kind mitigation is a very unkind approach to solving water problems. There are better ways to take care of our rivers.

Literature

Wetland Mitigation in the United States: Assessing the Success of Mitigation Policies. http://water.epa.gov/lawsregs/guidance/wetlands/upload/2004_10_28_wetlands_ambrose_wetlandmitigationinus.pdf

Washington State Wetland Mitigation Evaluation Study, Phase 1: Compliance https://fortress.wa.gov/ecy/publications/publications/0006016.pdf

Washington State Wetland Mitigation Evaluation Study, Phase 2: Evaluating Success https://fortress.wa.gov/ecy/publications/publications/0206009.pdf

Water Resource Program Policy No. POL-2035, Evaluating Mitigation Plans (February 2013) http://www.ecy.wa.gov/programs/wr/rules/images/pdf/pol2035.pdf

Finding Rural Water Domestic Solutions While Protecting Instream Resources (Final Draft, Nov. 2014) http://www.ecy.wa.gov/programs/wr/wrac/images/pdf/112014-frdws-wpir-finaldraft.pdf


CELP joins with Tribes to Promote Balanced Solutions in Rural Water Supply Task Force Meetings

By Bruce Wishart, CELP Legislative Director

When the legislature adopted the state groundwater code in 1945, the landscape of Washington State was markedly different than it is today. At the time, there was so little development, even in urbanized areas, that it was felt that water drawn by wells for domestic use was so inconsequential that there was no need to permit the activity. Wells drawing less than 5,000 gallons a day were exempted from state water right permits. For many years, without permits, there was no real analysis of whether wells were having an impact on existing water rights and instream flows.

Flash forward 70 years and the picture had changed considerably. Considerable growth, even in rural areas, has led to water scarcity across the state, even on the damp Westside. New science and data on the “hydraulic continuity” between groundwater and surface water has demonstrated that we ignore exempt wells at our peril. Existing water right holders, whose wells are now threatened by the explosion of unpermitted wells, together with tribes and environmental groups led by CELP, are increasingly focused on this growing problem.

Recent Supreme Court decisions have highlighted the obligation of both local government and the state to properly manage unpermitted wells to avoid impacts on instream flows and existing water rights. These decisions, particularly Swinomish Indian Tribal Community vs. Washington Dep’t of Ecology (2013), have underscored the need for state and local authorities to provide proper management of water resources. The issue regularly comes before the legislature, as developers and others have attempted to erode these protections and return to the ‘hands off’ scheme of years past. On the positive side, however, several local jurisdictions are steadily working to put in place management programs designed to allow new development only when water impacts are properly mitigated.

In June, the Department of Ecology convened a Rural Water Supply Task Force in an attempt to reach consensus around these issues. The group met throughout the summer. CELP leaders along with tribal representatives engaged in the process, proposing balanced solutions while also calling attention to the real problem: water scarcity and the increasing problems associated with climate change.

Sadly, Ecology leaders kicked off the meetings by lamenting the loss of their ability to re-allocate instream flows to out-of-stream uses, an authority Ecology thought it possessed prior to the Swinomish decision.  This, Ecology suggested, is the “problem” that the group needed to solve. They also indicated their belief that it is Ecology’s duty to guarantee domestic water supplies for all future users.  User groups, for their part, attacked the decision and called for more regulatory flexibility and a new management scheme which would place a greater emphasis on economic rather than environmental needs.

Tribes and CELP leaders presented a different perspective, rejecting the call for more loopholes and exceptions. We continued to remind the group that water is a finite resource and we can no longer afford to put our collective heads in the sand. Appropriate, water-for-water mitigation is needed. We promoted programs in Kittitas and Dungeness Counties where local governments have struck a balance between careful water management and the desire to allow some growth.

Not surprisingly, this honest exchange of views did not result in a consensus around rural water supply policies. As of this writing, Ecology plans to prepare a final report summarizing the various ideas and perspectives presented by stakeholders. Most agree that it is very likely that, while this group failed to resolve the issue, the legislature will take it up again. Stay tuned.

Bruce Wishart of Wishart Public Affairs serves as CELP’s Legislative Director and represents CELP before the state legislature and the Department of Ecology.    


Inseparable: Land Use and Water Availability

By Patrick Williams, Attorney at Law

Land use and water availability are inextricably intertwined throughout the West and Washington is no exception. Here in Washington, this connection is causing difficulties for local county officials and the Department of Ecology.  County officials are responsible for approving building permits and subdivision plans for new development.  In a 2011 Washington State Supreme Court decision, Kittitas County v. Eastern Washington Growth Management Hearings Board, the Court ruled that the Growth Management Act (GMA) requires counties to protect water resources.  The Court also ruled that when counties approve land use permits, they must make water availability determinations that are consistent with water resources laws.   Water availability means more than simply determining whether a well can physically supply water. Counties throughout Washington may not issue land use permits if water is not legally available to supply the project.

Because Washington follows the prior appropriation system for water management, people with senior water rights are entitled to protection from junior or newer water uses. This is true whether the older right is for irrigation purposes or for instream flows designed to protect fish and natural river ecosystems.  This is also true for permit-exempt wells, which are commonly used to supply water for rural development.  Therefore, when county officials are asked to approve water supply for a new development, they must ensure that the new water use will not utilize water that is already allocated to a senior water use, including instream flows.

This raises several problems.  First, Washington’s waters are fully allocated in many watersheds, due to demands by municipalities, irrigators, and industries along with instream flow rules and tribal treaty rights to water for fisheries.  County land use approvals that approve water supply that is otherwise appropriated can lead to liability issues.  Most counties do not have the resources or technical expertise to assess water supply availability.  The Court in Kittitas recognized this and noted that Ecology should assist the counties in assessing whether water is legally available.  The question then becomes: how will this process work?

The Kittitas decision spurred CELP, assisted by Earthjustice, to ask Ecology to provide guidance to counties regarding water resources law and implementation.   CELP’s May 2012 letter to Ecology laid out a framework for step-by-step review of the status of water resources.   Ecology did draft and circulate proposed guidance in October 2013, but that document failed to recognize some basic principles of water law, including hydraulic continuity.   The draft guidance was heavily criticized by CELP, tribes and other parties.

In December 2013, five legislators sent a letter to Governor Inslee asking that Ecology address legal issues relating to water supply.  In response, Ecology established two workgroups.  The “Rural Water Supply” workgroup is discussed elsewhere in this issue of WaterWatch.   Of significance here, Ecology also initiated the Water Availability Guidance for Counties Workgroup.  Ecology’s goal is to work with counties and interested stakeholders on how to help counties with duties to protect water resource consistent with Water Code requirements.[1]  The workgroup is open to the public and CELP is attending, with county officials comprising the majority of those in attendance.

The first meeting was held in Olympia on September 11.  While Ecology’s intent to provide clear guidance to the counties on water resources law is laudable, the execution fell flat.  The initial meeting was intended to establish goals and outcomes for the workgroup, but most of the meeting was spent discussing which stakeholders should be at the table.  Beyond this, many county officials attended the workgroup in the hope of getting basic advice about how to address the land use water availability question. Unfortunately Ecology did not provide assistance for this issue.  So what are the counties to do?

CELP’s Proposal:

At the meeting CELP distributed its May 2012 letter that outlines how county officials should address water availability in the land use context when an applicant proposes using a permit-exempt well.   Based on court decisions and the water code, counties should follow these steps:

  • First, it is important to note that the law puts the burden on the applicant for a building or subdivision permit to demonstrate that water supply is adequate.  This is consistent with water code requirements that applicants for water rights have the burden of meeting statutory tests regarding availability, impairment and the public interest.
  • The applicant for a land use permit must first show there is no closure of groundwater. If groundwater is closed to further withdrawals, then the permit may be approved, but only if full mitigation for the water use is demonstrated.
  • If there are surface water closures, then the building applicant must show there is no hydraulic connection between the groundwater proposed for the development and the surface water closed to new appropriations.
  • If there is an instream flow water right at issue, the applicant must show that the flows are met throughout the year, every year and the applicant’s water use will not impact the flows.
  • If the instream flows are not being met the applicant must fully mitigate any likely impact unless there is reliable science proving there is no connection between the groundwater and the surface water.

The bottom line is that neither the counties nor Ecology can allow for new developments to take water already appropriated for instream flows or existing and senior water users.  The prudent way forward is to identify those areas within counties where groundwater is connected with surface waters for which instream flows are established, or where groundwater is closed to further withdrawals.  In those situations, counties should presume that water is not legally available, and issue permits only where full mitigation is offered.  Ecology can assist the counties in identifying these areas by providing hydrologic reports and information.  This should be the first step in providing clarity to counties to approve land use decisions that require water supply.

Only with real and substantive mitigation will counties be able to approve new rural development that requires water supply.  It is time for the state to make a real and sustained effort at creating a reliable and protective mitigation program; one that protects instream flows and allows for reasonable rural development.

About the Author:  Patrick Williams is principle in the Patrick Williams Law Firm in Seattle, where he represents clients on public interest water and environmental law matters.  He served as CELP’s staff attorney between 2006 and 2009 and represents CELP in the County Water Guidance Workgroup.  You can reach him at Patrick@patrickwilliamslaw.com and 206-724-2282.


[1] Ecology’s Water Availability Guidance for Counties Website, http://www.ecy.wa.gov/programs/wr/wrac/rwss-wag.html.


Washington Water Watch (August 2014 Edition)

Did you miss our August Edition of Washington Water Watch in your inbox?

Click here to view the PDF version of our newsletter.

Don’t miss out on our update on the protection of Similkameen Falls and an excellent recap of the Columbia River Treaty Multifaith Prayer Vigils!


Similkameen Falls Focus of CELP Protection Efforts

Rachael Paschal Osborn, Senior Policy Advisor

BLM Similkameen Trail EA Map

Map of the Similkameen River Trail. Image credit U.S. Bureau of Land Management.

The Similkameen Falls sit below Enloe dam on the Similkameen River, located about 4 miles northwest of the town of Oroville in Okanogan County.  The Falls are an important cultural resource for the Lower Similkameen Indian Band and the Confederated Colville Tribes.   The Similkameen is also a popular recreational destination for hikers and boaters, with the 2011 designation of the Similkameen River Trail, which ends at the Falls, and which will soon become a segment of the new, 1200-mile long Pacific Northwest National Scenic Trail .  The River is also designated as part of the Greater Columbia Water Trail.

Enloe dam has not generated power since the 1950’s, and sits like a concrete plug in the river.  Okanogan Public Utility District (PUD) however, plans to build off-river turbines adjacent to the dam and divert all of the water out of the river during summer months, de-watering the Similkameen Falls.  The Department of Ecology endorsed this plan by issuing a 401 Certification and a water right to the PUD, both conditioned on maintaining a paltry 10 to 30 cfs flow over the Falls.

Having recently successfully settled the Spokane Falls 401 Certification litigation, thus re-hydrating Spokane’s centerpiece waterfalls, CELP joined with partners to appeal the Okanogan PUD 401 Certification to the Pollution Control Hearings Board.  Trial was held in April 2013, and Bo Shelby and Doug Whittaker of Confluence Research & Consulting – the leading national experts on river management for recreation and aesthetics – provided testimony about the aesthetic and recreational values of the Similkameen Falls, and the failure of Ecology’s permit to protect those values. Conservation Group Expert Report 2/4/13 The Board agreed that Ecology and the PUD had not adequately studied aesthetic flows, and directed the two agencies to prepare a new aesthetic flow study after the project is built. CELP et al v. Ecology and Okanogan PUD, PCHB Final Amended Order 8-30-13.

As a result Okanogan PUD faces substantial uncertainty as to how much water will be required to remain instream and therefore unavailable to power its turbines.   A 2011 study by Rocky Mountain Econometrics demonstrates that the Enloe Project is already an economic loser, and with less water available, will likely become a major liability for Okanogan PUD and its ratepayers.

In August 2013, Ecology inexplicably issued a new water right to the PUD, authorizing it to divert 600 cfs from the river and maintain a 10/30 cfs minimum flow – the exact flow that the Pollution Control Hearings Board had just rejected.  CELP and its partners again appealed, and the Board agreed, imposing conditions similar to those contained in the amended 401 Certification.

However, without knowing whether it is even possible to establish an aesthetic flow for the waterfalls, Ecology could not make the important finding that the water right will not cause harm to the public interest, one of the four tests for a new water right.   Ecology should have denied the water right application or issued it as a preliminary permit.  Because of the Board’s faulty legal reasoning – that the public interest determination can be deferred to a future date – CELP has appealed the Board’s order to Thurston County Superior Court.

This month, CELP signed on to a letter prepared by the Hydropower Reform Coalition, critiquing the PUD’s new Aesthetic and Recreation Management Plans, HRC comments on Enloe Aesthetic and Recreational Reports 8-19-14, which fail to address the minimum flow bypass questions and recreational values of the Similkameen River.   The concern is that the PUD’s continuing minimization of the uncertainty surrounding instream flow issues has significance for the economic viability of the project.   Okanogan ratepayers are already facing big rate increases.  The Enloe Project is going to make matters much worse.

There is a better path, and that path is to consider dam removal.  The Enloe Project is a perfect example of ancient infrastructure that cannot reasonably be upgraded to achieve cheap hydropower.  It’s time to think about taking out Enloe dam and restoring a free-flowing Similkameen River.   The fishery and water quality benefits could be substantial.

CELP is happy to be working in concert with its partners American Whitewater, Columbiana, North Cascades Conservation Council, Sierra Club, Confluence Research & Consulting, Rocky Mountain Econometrics, Conservation Northwest, and the Hydropower Reform Coalition.   We are also grateful to our attorneys, Andrea Rodgers, Kristen Larson and Suzanne Skinner, and to our members and the foundations who have supported us in protecting the beautiful Similkameen Falls.   It takes a village to protect a waterfall.

Stay tuned for more news on the future of the Similkameen River and Falls, and Enloe dam.


Spokane River Gets Its Day In Court

By Rachael Paschal Osborn, CELP Senior Policy Advisor

“This is the worst PCB contamination problem of any river in the state.” With these opening words, on Monday July 21 expert Clean Water Act attorney, Richard Smith of Smith & Lowney, argued to federal Judge Barbara J. Rothstein that the U.S. Environmental Protection Agency (EPA) failed in its duty to adopt a PCB cleanup plan for the beautiful but troubled Spokane River.Spokane River Fish Advisory

In 2011, CELP joined with Sierra Club to sue the EPA for failure to prepare a PCB clean-up plan (known as a “total maximum daily load” or TMDL) for the Spokane River. At issue is PCB pollution so severe that public health advisories warn against eating fish from the river.

PCBs are a group of industrial compounds associated with liver dysfunction and cancer.  Wildlife are also vulnerable to PCBs. Manufacture of these compounds is now banned in the United States, although they continue to persist in the environment due to past use.

The Spokane Tribe, whose reservation is downriver of the dischargers, intervened as co-plaintiff, in part because of the EPA’s failure to protect tribal water quality standards for PCBs and other toxic chemicals.   The Tribe’s standards are the first fish consumption-based standards adopted in Washington.  EPA’s disregard for these human health-based standards provides a cautionary look into how federal and state agencies will implement the newly announced fish consumption standards for the rest of the state.

On Monday, July 21, the matter of Sierra Club and CELP v. Dennis McLerran was heard by Judge Rothstein at the federal courthouse in Seattle. In her questions to attorneys for EPA and the Washington Department of Ecology, Judge Rothstein articulated her understanding of what is at stake in this case. Ecology has created a local “task force,” made up of Spokane River polluters, who now control what to do about PCB pollution. Ecology established the task force to substitute for both a cleanup plan and placing limits on PCB discharges from the five treatment plants on the river.

Judge Rothstein questioned whether the task force approach can achieve actual cleanup, given that there are no milestones, deadlines, or criteria for progress, and the consensus approach gives the polluters a veto over any action of the group. The Judge also noted the absence of PCB limits in pollution permits, which normally operate to control toxic discharges from treatment plant pipes. Additionally, Judge Rothstein expressed interest in the threats posed to members of the Spokane Tribe, who consume fish from the Spokane River. PCB concentrations increase as the river flows downstream, putting Spokane Reservation residents at particular risk.

Following argument, Judge Rothstein invited lawyers for all parties to her chambers and suggested the parties attempt to settle the case before she rules.  Stay tuned for what happens next.


Rural Water Supply versus Instream Flow Protection

Update on Ecology’s New Stakeholder Process and Recent Litigation

by Rachael Paschal Osborn, CELP Senior Policy Advisor

Can Washington’s Water Resources Program ‘just say no’ to new water rights that impair instream flows and harm fish, wildlife and water quality? It’s a question CELP has asked for 20 years, and unfortunately, recent Department of Ecology efforts indicate the answer is still no.

As you may recall, in October 2013, the Washington Supreme Court issued its decision in Swinomish Indian Tribal Community v.  Ecology:  a decision that underscored that instream flow rules are bona fide water rights that  Ecology could not subsequently abrogate in favor of permit exempt wells. That decision has prompted  Ecology to explore with the counties alternative means of supplying water for new development.  At first Ecology was talking only with the counties.  At CELP’s insistence, Ecology opened up its conversations to include interested Tribes and CELP in a new a new stakeholder process, called Rural Water Supply Strategies, to craft responses to the Swinomish decision and others that constrain the use of exempt wells.  For more on the Swinomish decision and its implications see Suzanne’s article, “No Quick Fixes to Competing Demands for Water” (WA-AWRA Newsletter, June 2014).

The first meeting occurred on  Monday, June 16th. CELP is concerned that the process  might become be better described as  “Undermining Washington’s Instream Flow Program”  since the majority of participants asked that Ecology subordinate instream flows  to new wells for rural development. Of particular concern:  suggestions to create a blanket exemption to allow new exempt wells regardless of impacts on instream flows, and to use “out of kind” mitigation to fund habitat restoration disconnected from actual depletion of instream flows caused by new wells.

CELP’s representatives to Ecology’s process include board member Dave Monthie of DLM & Associates; Melissa Bates, founder of Kittitas water advocacy group Aqua Permanenté; and our legislative director, Bruce Wishart.  Melissa and Bruce delivered important messages on June 16, including that:

  • Instream flows are water rights that are entitled to the same protections as out-of-stream rights
  • Ecology is not authorized to utilize out of kind mitigation to substitute for instream flow depletion.
  • When all the water in a basin is fully allocated for existing rights and environmental flows, Ecology must close the basin and ‘just say no’ to new rights.  At that point, full mitigation is needed.
  • Climate change will only make matters worse as snowpack and glaciers recede.   Alternative water supply must focus on demand management, including conservation, use of reclaimed water, and changing our water ethic.

Click here for a complete list of CELP’s Proposed Water Management Strategies. For a detailed analysis of the Swinomish decision, CELP will continue to attend Ecology’s Rural Water-Instream Flow process through September and into the 2015 legislative session, actively promoting the public interest in Washington’s rivers and aquifers.


2014 Legislative Session Overview

By Bruce Wishart, CELP’s Government Affairs Specialist

The 2014 session is now well behind us and it’s time to review what progress was made on water issues in Olympia this year.  Some political observers have described the 2014 legislative session as one of the least productive sessions on record.  Strong differences between the House and Senate, combined with the fact that this was a “short” or 60 day session (and an election year), made it difficult for agreement to be reached on most topics.  Nevertheless, legislators engaged in a vigorous debate on lots of issues, including water resources and water quality issues.  CELP, working together with tribes and other environmental groups, helped lead efforts this session to defeat a number of bills that would have seriously impacted our waters.

While there were fewer water resources related bills introduced than we have seen in subsequent years, the heated debate over rural development and exempt wells continued.  Local governments, agricultural interests, and developers all supported legislation offered in the House (HB 2288) which would have stripped away authority from the Growth Hearings Board to oversee decisions by local government to permit rural development in areas where water supplies were scarce.  This bill followed in the wake of the Board’s decision in Hirst v. Whatcom County, which affirmed and built upon prior court decisions holding that local governments have an obligation to ensure that water is legally available for new development before approving comprehensive plans or permitting new projects.  Despite the Growth Management Act’s multiple directives that counties determine water availability before approving land use development, the proponents of HB 2288 argued that the Hearings Board had overstepped its bounds.  CELP and tribal representatives opposed the bill and, thankfully, it did not advance.

In the Senate, Senator Honeyford (R-Yakima) introduced SB 6467, which would have overturned a recent Washington Supreme Court decision, Swinomish Indian Tribal Community v. Ecology, which held that Ecology improperly authorized exempt well use despite clear evidence that the wells would deplete minimum instream flows for the Skagit River, adopted by rule.  SB 6467, again, opposed by both CELP and the tribes, was also defeated.

Several other bills were offered on the topic of local “water banking” in both the House and the Senate (HB 2760, HB 2596, and 6239).  Water banks allow for new water users to purchase “credits” to offset the impact of their water usage in areas where new development would impact instream flows and other existing water rights.  While CELP supports that approach generally, we were concerned that these bills might encourage local governments to move forward with water banks without having the technical expertise to properly assess the validity of the rights being banked and to conduct the trading properly.  In the end, these bills also fell by the wayside.

On the water quality side, five bills were introduced by the Cattlemen and the Farm Bureau in an attempt to strip away Department of Ecology’s authority to regulate “nonpoint” agricultural water quality problems.  “Nonpoint” pollution refers to diffuse sources of pollution—such as cattle manure in streams they use for watering.  Once again, these bills were introduced in response to  a  recent Washington State Supreme Court decision, Lemire v. Ecology, which  affirmed that Ecology had clear authority under state law to prevent farms from discharging pollution into the waters of the state.  A variety of bills were introduced on this topic (SB 6087, 6288 and HB 2472, 2478) which would have either eliminated the agency’s authority outright or, in the alternative, placed many restrictions on their ability to exercise it.  CELP working again with other environmental groups and tribes stopped these bills dead in their tracks.  The discussion over this authority will continue this summer in a Water Quality and Agriculture working group created by Ecology Director Maia Bellon to discuss how water quality requirements will be enforced, among other topics.  (CELP accepted Ecology’s invitation to l participate in the working group; there are only a handful of few environmental representatives on it).   A fifth bill, HB 2454, allows an initial investigation of water quality trading.  After considerable effort, CELP ensured that this bill was amended to our satisfaction.  The bill is on the Governor’s desk awaiting his signature.

The Legislature’s last order of business was approval of “supplemental” budgets.   Since the state operates on a two year, “biennial budget,” the supplemental budgets adopted this year were, for the most part, “course corrections” amending the 2013-14 biennial budget adopted last year.  For this reason, the debate lacked much of the drama we saw last year on the main budget.  One area in which there was a great deal of controversy was the state Supplemental Capital Budget, which funds construction projects.  This year, for the first time since 1996, the House and Senate could not come to agreement on a Capital Budget.  Among other things, the collapse of negotiations on this budget sank efforts to create a legislative study group designed to develop recommendations on anticipated referendum to be introduced in 2015 to finance large scale water projects throughout the state.  The legislative study group would have been charged with developing a multi-billion dollar revenue source to fund controversial water storage projects, such as those proposed for the Yakima Enhancement Project, as well as water projects that enjoy broad support, including those designed to address harm from stormwater runoff.


From the Docket

CELP works in many ways—including in the courts.  We have recently put a lot of time into some important cases to protect Washington’s waters.  Here is a quick update:

 

CELP, American Whitewater, Columbia River Bioregional Educational Project, and North Cascades Conservation Council v. Department of Ecology and Okanogan PUD: Enloe Dam Round 2: The appeal of  Okanogan PUD’s water right

Last summer, CELP and its allies won an important victory for the Clean Water Act and instream flows in Washington State.  The Pollution Control Hearings Board (PCHB) required Ecology to do an aesthetic flow study and set aesthetic flows for Similkameen Falls if and when the Enloe hydroelectric project in Okanogan County becomes operational.  However, shortly after the decision came down, Ecology issued a Report of Examination recommending that Okanogan PUD, which owns the project, be granted a permanent water right that incorporated the very minimum flows the PCHB had rejected.  The Report gave a nod to the PCHB decision, stating that the flows should change after the fact if the aesthetic flow study demonstrated that higher flows were required.  But it is far from clear whether this maneuver by Ecology is legal.

Water rights, once granted and perfected, last forever unless relinquished. And what is odd here is that the Legislature created a specific mechanism that fits perfectly here: the preliminary permit.  The preliminary permit would allow the PUD to build the project, undertake the study, and then, and only then, would Ecology set the appropriate aesthetic flow for Enloe Dam.

Ecology’s ROE recommended a procedure that simply may not be legal. We had no choice but to protect the PCHB decision requiring aesthetic flows and to sue.

Andrea Rodgers Harris and Kristen Larsen are litigating the case (along with Suzanne Skinner). It should be determined in the next few months on summary judgment (so no trial will be required). We will keep you posted.

 

Sierra Club & CELP v. USEPA: PCB Clean Up Plan for the Spokane River 

In 2011, CELP and the Sierra Club filed suit to compel EPA to create a clean-up plan for the Spokane River to rid it of PCBs.  Federal court cases can take a long time.  This month, Richard Smith of Smith and Lowney, our attorney, filed the last brief in our case.  We contend that EPA has a duty to take over Ecology’s aborted clean-up process (called a Total Maximum Daily Load process) and create a pollution plan for the Spokane River.  We are lucky to have the Spokane Tribe as an intervener in this case.  The Tribe’s case asserts that the federal government is failing in its trust duties to protect the Spokane River, and the fish upon which the Tribe depend.

 

OWL and CELP v. Kennewick Hospital:  Columbia River Water Right Appeal

The Columbia River is a heartbreaker.  Back in 2006, the National Academy of Sciences clearly stated that no further water should come out of the river—any new water rights would further imperil the river’s seven species of endangered or threatened salmonids.  The Department of Ecology conscientiously issued a moratorium on new water rights.  That lasted until the Legislature effectively repealed it and overrode the minimum instream flow rules it had adopted for the Columbia.

Ecology then began issuing new water rights even though no science supported the agency’s actions.  Indeed, climate change science makes it clear that over time that water shortages in the river will only become more severe.

Ecology issued a big, really big, new water right to Kennewick General Hospital in September, 2013.  A water right to a hospital?  Yes.  The Hospital also owns land—it intends to sell the land with the water right to irrigate it to Easterday Farms (long time CELP friends will remember Easterday).

On behalf of the Okanagan Wilderness League, Rachael Osborn, Patrick Williams, and Dave Monthie filed an appeal to the PCHB of the Hospital’s water right decision  for failing to make the permit contingent on instream flows, as well as improperly relying on “out of kind” mitigation (in other words mitigating a loss of water from the Columbia with money, and land or fish improvement projects on tributaries).

CELP has intervened in the PCHB case.  We are lucky that Janette Brimmer of Earthjustice jumped into the case and is now lead counsel for both OWL and CELP.  Once again the case looks like it will be decided without trial on summary judgment.

 

Sara Foster v. Yelm: Challenge to Out-of-kind Mitigation in a Permit

Dave Monthie, CELP Board Member extraordinaire, filed a great friend-of-the-court brief (or amicus) last week on behalf of CELP and the Carnegie Group in the Foster case, now pending in Thurston County Superior Court.  This case challenges Ecology’s reliance on so-called “out of kind” mitigation to compensate for admitted damage to instream flows from new water rights.  What does “out of kind” mean?  Well… habitat improvements, money,…anything but real water droplets at the time and place needed to offset the projected impact to already nominal instream flows.

The PCHB upheld Ecology’s issuance of the water right.  Foster appealed to Thurston County Superior Court.  Just last week, the Court granted CELP and Carnegie’s request to submit their amicus brief.  The appeal hearing is currently scheduled for May 9th.

 

We cannot begin to thank the dedicated attorneys (named above in bold) who work so hard for Washington’s waters.