In this issue, you’ll find articles about Election Day, our litigation work relating to the Enloe Dam and Dungeness River rule, our Annual Winter CLE, and more. Read the October 2018 issue of Washington Water Watch here.
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.
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.
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
by Dan Von Seggern
On June 11, an equally divided United States Supreme Court affirmed the 9th Circuit Court of Appeals’ decision in Washington v. United States (the “culvert case”). This long-running case, filed in 2001, involved fish passage-blocking culverts under roads owned by the State of Washington (or “the State”). The United States and a group of Indian Tribes filed suit seeking an injunction requiring the State to repair culverts under its control to restore access of fish, including salmon and steelhead, to more than 1,000 miles of upstream habitat. Restoring passage is expected to result in production of several hundred thousand more adult fish annually. This will be a significant boost for the State’s ailing salmon runs and for those who depend on the runs.
In 2013, U.S. District Court Judge Martinez found for the Tribes and ordered that the culverts be repaired. Judge Martinez held that the 1854-5 Stevens Treaties, by which the Tribes ceded vast amounts of land for settlement, would have been understood by the Tribes at the time as a guarantee that there would forever be salmon available to them. He further held that the fish-blocking culverts were an impermissible infringement on the Tribes’ treaty rights. The State appealed to the 9th Circuit Court of Appeals, which affirmed the decision.
The Supreme Court (without the participation of Justice Anthony Kennedy, who had been involved in an earlier aspect of the case) affirmed the decision without a written opinion. This decision means that the Order requiring the culverts be removed or repaired will stand and fish will again have access to the habitat which they need to recover and thrive. This decision is also a significant victory for Tribal treaty rights, in that the right to fish is now understood to include the right to habitat suitable for fish production.
In this issue, an article on the flawed “Hirst fix” recently passed by the WA State Legislature, an update on the Leavenworth Hatchery case, an in-depth article on the real impact of permit-exempt wells and the Hirst fix, the save the date for Winter Waters Event in March, and more.
Read the January 2018 issue of Washington Watch Watch here.
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.
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.
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.