Summer is coming! This month’s issue of Water Watch features information on our upcoming Celebrate Water event, an article on our letter to Governor Inslee about restoring higher flow requirements on the Spokane River, a “Love Letter to a River” by CELP member Pat Sumption, and an introduction to CELP’s newest board member, Jill F. Johnson.
Update and correction from the H2KNOW campaign: the data for this blog post were from the USGS website, and have subsequently been revised upward to flows around 700cfs. “Provisional Data Subject to Revision” is noted on the river gage website. Current flows of around 700 are extremely low, while not yet at historic lows. Despite low flows, water use remains high.
Spokane River flows dropping
Plea for community to conserve water to help struggling river
Today the H2KNOW community water-conservation campaign sounded the alarm that water levels in the Spokane River dropped below 500 cubic feet per second (cfs) for the first time this summer. Meanwhile, City of Spokane water use is at an all-time high: 3.8 billion gallons in July, or 122 million gallons of water each day.
“Our Spokane River is in trouble, and we must conserve water,” said John Osborn with the new H2KNOW water conservation campaign. “We must use water wisely to help our struggling river.”
Water supply is provided by groundwater from the Spokane-Rathdrum Aquifer. The Aquifer also supplies water to the Spokane River. Increased groundwater pumping for human use directly depletes flow in the River.
Hot temperatures approaching 100 degrees are forecast again for much of this week. Drought combined with excessive water use by the 500,000 people living in this basin are causing historic extremes in low flow for the Spokane River. The lowest flows ever recorded are in the mid-400 cfs range, and we have begun to break the record according to the USGS Spokane River gage. Low flows harm fish, wildlife, recreational opportunities, and businesses that depend on the river.
“Conserve water for the river’s sake,” said Tom Soeldner, a retired Lutheran pastor who co-chair’s Sierra Club’s Upper Columbia River Group. “There is a void in leadership from our government on water conservation during this drought. We as individuals must take responsibility for protecting our Spokane River.”
Five actions that people can take to conserve water and help our Spokane River:
- Reduce outdoor watering (especially stop overwatering grass)
- Fix broken or clogged pipes and sprinkler heads
- Fix leaks in all plumbing fixtures
- Install water-efficient devices (such as low flow toilets and shower heads)
- Replace your lawn with low-water plants
Comparing flows now with prior years underscores the terrible condition of the river and the need for people to act. One year ago, in 2014, lowest flows were about 900cfs. When Spokane was a young city in the 1890s, flows ranged from 1500-2000cfs in August. River flows are monitored at a stream gage near the Monroe Street dam, the oldest continuous gage in Washington State.
During the first week of August, the H2KNOW campaign launched a regional public education effort to help people understand the connection between aquifer and river, and the need to conserve water during this drought summer and beyond. For more on the water conservation campaign and what people can do, visit www.H2KNOW.info
CELP, other river advocacy groups provide basic information missing from agency’s flow proposal
On November 7, CELP and other river advocates filed nearly 2,000 comments and released Spokane River studies criticizing the Dept. of Ecology’s proposed rule for the Spokane River. The Ecology proposal would set instream flows, including summertime low flows at 850 cubic feet per second (cfs). Spokane River flows exceed this number for most of the summer every year, but all water above 850 cfs will eventually be taken by Washington and Idaho for out-of-stream water rights under this proposal.
In proposing such extreme low flows, the Department of Ecology ignored statutory requirements to protect recreational and navigational values of the Spokane River. Preliminary findings from an American Whitewater survey, asking Spokane River boaters about their flow preferences, show that all boaters prefer flows higher than 1000 cfs and most prefer flows in the range of 5000 cfs. Flows less than 1000 cfs are considered unfavorable to boaters and can cause damage to some craft. Numerous boating groups, individual paddlers and whitewater-based businesses commented on the inadequacy of the proposed flows to protect recreational use of the river.
Ecology also failed to assess scenic values of the Spokane River as it flows through the gorge, prompting river advocates to undertake their own photographic study. CELP’s atlas of 37 key observation points of the Spokane River’s downriver reach, inventorying the reach between the Monroe Street bridge in downtown Spokane and Nine Mile reservoir, documents five different flows ranging from 2,800 to 1,000 cfs. CELP also submitted a memo from Confluence Research & Consulting, a firm that provides training to Ecology staff, describing methods to conduct aesthetic flow studies.
Ecology also failed to consider the interstate water supply ramifications of its proposed rule. Since 2002, Idaho has issued 901 new water rights from the Rathdrum Aquifer, which feeds the Spokane River in Washington. CELP synthesized the Idaho database and provided an “Idaho Water Rights Report” with its comments.
Multiple businesses, organizations, and individuals who would be harmed by the proposed low flows submitted comments, altogether about 2,000 comments. In addition to recreation, aesthetic and interstate issues, commenters questioned the impact of extreme low flows on redband fisheries and water quality, and noted that Ecology failed to consider needs related to restoration of anadromous fish to the Spokane River. The draft rule also failed to consider the economic impact of its proposal on small businesses that rely on a healthy Spokane River, and did not consider climate change impacts, despite an executive order that requires climate change analysis as part of all state agency decisions.
CELP has been involved with Spokane River flow advocacy since 1999, serving on the WRIA 55/57 watershed planning unit and its instream flow subcommittee through 2012. Watershed planning failed to achieve consensus and, per statute, the flow setting decision then transferred to the Departments of Ecology and Fish & Wildlife. Ecology has erroneously suggested in public settings that the extreme low flows proposed in the rule were a product of the watershed planning process. In private conversations, agency staff admit the proposal is a “split the baby decision” intended to pacify Spokane basin water users.
In 2008, CELP challenged the instream flows established for the Spokane Falls in Avista Corp.’s hydropower license, based on failure to protect aesthetic flows. That appeal resulted in a settlement restoring water to the Upper and Lower Spokane Falls 24/7/365.
Ecology may adopt the draft Spokane River rule as proposed, or could return the flow proposal to draft status and re-evaluate the need for higher flows to preserve public values.
“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.
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.
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.