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Hirst Update: Watershed Restoration and Enhancement Committees

by Trish Rolfe
Last session, the Washington State Legislature passed a streamflow restoration law, ESSB 6091, in response to the Supreme Court’s

Hirst decision. Hirst changed how counties could approve or deny building permits that use permit-exempt wells for a water source.

The law, RCW 90.94 Streamflow Restoration, helps protect water resources while providing water for rural residents reliant on permit exempt wells. The law directs local planning groups in 15 watersheds to develop or update plans that offset potential impacts to instream flows associated with new permit-exempt domestic water use. The law splits up these watersheds into two groups: those with previously adopted watershed plans and those without.

The Nooksack, Nisqually, Lower Chehalis, Upper Chehalis, Okanogan, Little Spokane, and Colville basins all have previously adopted watershed plans. For these seven basins, local watershed planning units are to update their watershed plan in order to compensate for the impacts of new permit exempt well uses.
The law identifies the Nooksack and Nisqually basins as the first two to be completed. They have until February 2019 to adopt a plan; if they fail to do so, Ecology must adopt related rules no later than August 2020. Planning units in the Lower Chehalis, Upper Chehalis, Okanogan, Little Spokane, and Colville basins have until February 2021 to develop their plans. Until watershed plans are updated and rules are adopted in these seven watersheds, new permit-exempt wells require only payment of a $500 fee. The maximum withdrawal is 3,000 gallons per day per connection on an annual average basis.

Deschutes River – Photo from WA Dept of Ecology

Eight other watersheds do not have previously adopted watershed plans. They are Snohomish, Cedar-Sammamish, Duwamish-Green, Puyallup-White, Chambers-Clover, Deschutes, Kennedy-Goldsborough, and Kitsap. For these eight basins:

  • Ecology will establish and chair watershed committees and invite representatives from local governments, tribes, and interest groups.
  • The plans for these watersheds are due June 30, 2021.
  • New permit-exempt wells require payment of a $500 fee.. The maximum withdrawal is 950 gallons per day per connection, on an annual average basis. During drought, this may be curtailed to 350 gallons per day per connection for indoor use only.
  • Building permit applicants in these areas must adequately manage stormwater onsite.

CELP has been appointed to participate on the Snohomish, Cedar-Sammamish and Duwamish-Green watershed planning units, and we have volunteers participating in several others.

The law also provides $300 million until 2033 for projects that will help fish and streamflows. Watershed planning groups will recommend proposals for funding by Ecology to achieve this.

Litigation News: Freeing the Similkameen River and Dungeness River Rule Challenge

by Dan Von Seggern

CELP Continues Fight to Free Similkameen River

The long-running battle to remove this environmentally damaging and economically unjustifiable Enloe Dam continues. A major tributary to the Okanogan River, the Similkameen flows through 122 miles of potential salmon habitat in British Columbia and Washington. A fish-blocking dam was constructed on the River in 1922 and has not generated power since 1958. The Okanogan County Public Utility District (PUD), which owns the dam, is attempting to restart power generation at the dam. The power the dam would produce is not needed and would be much more expensive than the PUD’s current sources of electricity.

On September 13, along with the Sierra Club and Columbiana, CELP filed a Notice of Intent to Sue the Okanogan County PUD as well as the National Marine Fisheries Service (NMFS) and the Federal Energy Regulatory Commission (FERC) over the dam’s effect on ESA-listed Upper Columbia steelhead and Chinook salmon. The Notice is the first step towards filing a lawsuit under the Endangered Species Act. We contend that the dam unlawfully harms ESA-listed fish species, that the process of evaluating the dam’s impact on fish was inadequate, and that FERC unlawfully failed to consult with NMFS regarding the listed fish, as the Endangered Species Act requires.

In a separate action, CELP has asked the 9th Circuit Court of Appeals to review FERC’s giving the PUD additional time to begin construction. The Federal Power Act requires that construction be started within the period of a hydroelectric license, and allows only a single two-year extension. When the PUD failed to begin construction within the required time, FERC “stayed” revocation of the license, effectively giving the PUD additional time. CELP believes that FERC lacked authority to “extend” the license in this manner and that it should have allowed public participation in the license amendment process.

Dungeness River Rule Challenge

This case (Bassett et al. v. Ecology, Case No. 51221-1-II) is a challenge by a group of property rights activists and developers to the Department of Ecology’s Instream Flow Rule for the Dungeness River, WAC 173-518.  CELP supports the Rule, which provides for mitigated use of new permit-exempt wells while protecting instream resources.  After the plaintiffs filed suit against Ecology, CELP joined in the case as an intervener to argue in favor of the Rule. CELP and Ecology prevailed in Thurston County Superior Court, and plaintiffs appealed.   Division II of the Washington Court of Appeals heard oral argument in the case on October 18 and we are now awaiting the Court’s ruling.

Washington Water Watch: July 2018 Edition

In this issue, a recap on Celebrate Water, a tribute to former CELP Board President and Ralph W. Johnson Water Hero Award Nancy Rust, an update on the Culvert case, an introduction to CELP’s summer legal intern, Meredith Bro, and more. Read the July 2018 issue of Washington Water Watch here.

Washington Water Watch: February/March 2018 Edition

In this issue, a legislative wrap up, an article on the impacts of the Hirst fix, more information on Celebrate Water and Give BIG, the latest edition of Watersheds to Watch, and an introduction to CELP’s newest staff member, Nick Manning. Read the February/March 2018 issue of Washington Water Watch here.

Washington Water Watch: January 2018 Edition

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.


Watersheds to Watch: WRIA 19 Lyre-Hoko

This is the first in a series of blog posts examining unprotected watersheds in Washington State.

 

Background on Instream Flow Rules in Washington State

 

In 1998, the Washington State Legislature passed the Watershed Management Act, which provides a framework for local governments, affected Indian Tribes, citizens and stakeholders to develop plans to manage the water resources within their watershed. There are 62 watersheds or Water Resource Inventory Areas (WRIAs, pronounced “Why-rahs”) within Washington State.

In addition to the mandatory issue of water quantity, planning groups may choose three optional components to include in their plans: making instream flow recommendations that the Department of Ecology can use to establish instream flows by rule, water quality, and fish habitat. While some of the 62 watersheds have recently adopted instream flow rules (like the Dungeness Rule which was adopted in 2013, and which CELP successfully helped to defend in court in 2016), far more have instream flow rules that are decades old or no instream flow rule at all.

Instream flow rules act as a “water right for the river,” and function the same way as any other legal water right, protecting instream resources from future water withdrawals. These rules are important for ensuring that there is enough water in rivers and streams to provide for clean water, fish habitat, recreation, and aesthetics, and are especially important given the threat of climate change and the state’s historic drought of 2015.

 

WRIA 19: The Lyre-Hoko

 

WRIA 19, designated as the Lyre-Hoko watershed, is located in Clallam County in the northwestern most part of the Olympia Peninsula, spanning from the tip of Cape Flattery to just west of the Elwha River basin. WRIA 19 encompasses the major waterways of the Lyre, Seiku, Hoko, Clallam, Pysht, East and West Twin Rivers, and Salt and Deep Creeks, which drain directly into the Strait of Juan de Fuca along with many other smaller streams.

CELP has identified WRIA 19 as a critical watershed in Washington State. The Olympic Peninsula was one of the first three regions where Governor Inslee declared drought conditions in 2015 (the Lyre-Hoko watershed was named specifically along with the Quilcene-Snow, Elwha-Dungeness, Sol Duc-Hoh, and Queets-Quinault). WRIA 19 is also an important watershed for salmon – it encompasses 27 separate salmon-bearing rivers and streams that support Chinook, chum, and coho. Although the watersheds in the Lyre-Hoko area don’t support salmon runs listed under the Endangered Species Act, the nearshore areas of WRIA 19 serve as an important migratory corridor for salmon populations (including those listed under the ESA) leaving or entering the Strait of Juan de Fuca. According to a 2015 Salmonoid Restoration Plan for WRIA 19 published by the North Olympia Peninsula Lead Entity for Salmon, however, many of the salmon populations in individual basins are considered depressed or critical, and are projected to decline.

Despite its obvious need for protection, WRIA 19 does not have an instream flow rule. Clallam County formed an official planning unit under the Watershed Management Act and initially unanimously agreed on instream flow recommendations in 2005, but disagreement over the specific numbers ultimately killed the plan in 2010 (here’s a link to the planning unit’s 2009 draft plan). While the Makah and Lower Elwha Clallam tribes supported the proposed instream flow numbers in the interest of fish habitat and adequate stream flows, the Clallam County PUD opposed them as being too high to allow for continued development and human consumption, (the timber industry also firmly opposed parts of the plan relating to riparian buffers). With the groups at an impasse, the planning process unraveled, and no plan was approved.

If a local planning unit fails to agree on a plan, the responsibility for instream flow rulemaking falls back to the Department of Ecology. Although it is unclear whether Ecology has an obligation to enact an instream flow rule in this circumstance, the fact remains that there is ample evidence that a rule needs to be put in place. In its own 2011 report on water availability in the Lyre-Hoko watershed, the Department of Ecology stated that the Department of Fish and Wildlife had recommended against issuing new water rights in sections of WRIA 19 “in order to protect fish populations.” Despite the fact that much of the requisite research and work was done in the nearly decade long local planning process, there remains no instream flow rule in place for the Lyre-Hoko watershed six years later.

Ecology has provided protection for many watersheds around the state – for example, CELP worked with the Department of Ecology to successfully defend the agency’s instream flow rule for the Dungeness River in 2016. However, CELP urges Ecology to take timely action in critical watersheds like the Lyre-Hoko in order to ensure healthy flows, abundant water for future generations, and plentiful habitat for fish.

If you are interested in helping to secure protections for the Lyre-Hoko Watershed, email CELP at contact@celp.org.


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.

Dungeness6 - Copy 800px

Dungeness River © Steve Farquhar

 

 

 

 

 

 

 

 

 

 

 

 

 


Skagit River protections threatened by Rule repeal proposal

On November 20, 2014, the Building Industry Association of Washington (BIAW), realtors and farm bureau filed a petition with the Washington Department of Ecology asking the agency to repeal the Skagit River instream flow rule.  The Center for Environmental Law & Policy (CELP) opposes the petition as it is inconsistent with recent Supreme Court decision and Washington case law.

“The rule petition is a new prong in the wholesale attack on Washington’s rivers that has been brought by developers for the past several years,” said Rachael Paschal Osborn, interim executive director of the Center for Environmental Law & Policy, “This proposal is inconsistent with state law and last year’s court decision in Swinomish Tribal Community v. State of Washington.”

The Skagit River instream flow rule has been the subject of controversy and court battles for more than a decade.  Ecology’s original rule does not allow for unmitigated new domestic wells. Skagit County sued to overturn that rule, causing Ecology to adopt an amendment that created “water reserves” in tributaries to the detriment of river flows.  One year ago, the Supreme Court held that rule to be invalid as violating state instream flow laws, causing reinstatement of the original rule.

BIAW’s petition to repeal the original rule incorrectly argues that the 2013 Supreme Court decision is inapplicable, and further ignores other court decisions of the last decade that have interpreted instream flow and domestic well laws.   Among other flaws in their arguments, the BIAW fails to recognize the physical impact of new wells on small streams, and that the state is obligated to provide water for all new development, regardless of whether water is available.

“Water scarcity is a big problem in Skagit County and throughout Washington state due to over-allocation of water rights and now, climate change,” said Osborn.   “Developers, local governments, and state agencies all must recognize that new water allocation is harmful unless fully mitigated.”

Solutions for Washington State’s water scarcity problems are provided “Proposed Water Management Strategies to Protect Instream Flows and Provide Water for Rural Development.”

Link –