Monthly Archives: December 2014

2,000 comments submitted on Dept of Ecology’s draft flow rule for the Spokane River

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.

Water News – December 2014

Skagit Rule Headed to Court Again?  The Washington Realtors, Building Industry Assn and Farm Bureau petitioned Ecology on November 20, seeking repeal or amendment of the original Skagit River instream flow rule.   The original rule was replaced in 2005, but was successfully challenged by the Swinomish Indian Tribe for allocating water that would harm Skagit basin instream flows.  In October 2013, the Supreme Court invalidated the 2005 rule, reinstating the original rule.  The BIAW petition claims that Washington law requires that instream rules allocate water for domestic uses.  Ecology must answer the petition in 60 days.   Read CELP’s comments and the petition here.

Hirst Case Stays Put in Division 1.  On Friday, December 5, the Washington Supreme Court denied Whatcom County’s request to transfer the Hirst v. Whatcom County appeal from the Court of Appeals to the high court.   Hirst is an important GMA case, and promises to elaborate on the 2011 Kittitas County decision that held that counties must adopt and implement Growth Management Act plans and rules that are consistent with Washington water resource laws.  CELP filed an amicus brief, as did the Department of Ecology, Building Industry Assn of Washington, and the Washington State Assn of Counties.  Read the Hirst Amicus Brief Here.

WSU Study Pinpoints Economic Futility of Yakima Dams.  A new study of the Yakima Integrated Water Plan, commissioned by the 2014 State Legislature and conducted by a team of economists led by Professor Jonathan Yoder of WSU, concludes that new and expanded dams and other “concrete-intensive” storage projects are economically infeasible.  The report recommends focus on fish passage and water markets as projects that will repay public investment.   The Columbia Basin Bulletin quotes CELP senior policy advisor Rachael Osborn on the study.   Read the Bulletin article and CELP’s comments here.

Endangered Species Plan for Washington’s Shorelands Receives Comment.  CELP joined an alliance of Puget Sound conservation advocates to comment on the Washington Dept of Natural Resources’ new Aquatic Lands Habitat Conservation Plan.   DNR’s duties to manage and protect aquatic lands derive in part from the public trust doctrine – a legal doctrine that informs CELP’s origins.   Read the letter here.

Enloe Dam Economics Study Shows Losses Ahead.   In November, CELP and allies published an economics report showing that Okanogan County ratepayers will lose large amounts of money if the PUD moves forward with its plan to re-power Enloe dam.   The report, prepared by Rocky Mountain Econometrics, details the financial peril to the PUD and its customers. Read the full report and news release here.  The conservation groups, including CELP, continue to challenge water quality and water right permits for the project.

CELP Weighs In On “Waters of the U.S.”

The University of Washington Law School has a new environmental law resource – the Regulatory Environmental Law & Policy or UW RELP Clinic, and CELP is one of its first clients.  On November 14, with the assistance of RELP students and professors, CELP submitted detailed comments on the U.S. Environmental Protection Agency’s proposed rule defining “waters of the United States” for Clean Water Act jurisdictional purposes.

Clean Water Act permits and other activities apply to the waters of the U.S. – a term that EPA has interpreted (based on Supreme Court decisions) to include waters used by migratory birds and wetlands not connected to other water bodies.   But, court decisions in 2001 and 2006 cast doubt on the scope of Clean Water Act jurisdiction, creating confusion about the extent of federal regulatory authority.

In response, EPA proposed the “waters of the U.S.” or WOTUS rule.  The rule provides more certainty as to when federal agencies can regulate.  But it also contains worrisome exemptions, excluding certain impoundments and tributaries from CWA jurisdiction.  Wholesale exemption of “ditches, swales and gullies” and groundwater are not based on sound science.

CELP’s comment letter focuses on the exclusion of groundwater from the CWA ambit.  In Washington, we integrate management of ground and surface waters where hydrologic science indicates the two are connected.  EPA’s definition fails to recognize that pollution of groundwater can cause pollution of surface waters (think Hanford and the Columbia River for example) and that courts have applied the Clean Water Act to groundwater that is hydraulically connected to surface waters.

CELP also endorsed the WOTUS comments prepared by expert water lawyer Janette Brimmer of Earthjustice, who represents CELP in other matters.

CELP thanks the RELP students and Professors Wildermuth and Rodgers for their outstanding research relating to the special concern of groundwater connectivity and protection under the Clean Water Act.

New eastern Washington dams don’t pencil out

On November 25, CELP responded with cautious optimism to the WSU economic draft analysis of new controversial dams and other projects proposed in the Yakima Basin.  The WSU review was done at the request of state legislators concerned about the $5 billion cost for the Yakima Plan for a state struggling with budgets. Today the WSU economists released their draft report for public comment, and are scheduled to submit their final report to the Legislature on December 15.

“The take-home message is that new dams in eastern Washington are money losers,” said Rachael Osborn of the Center for Environmental Law & Policy.  “This is old news:  for over 30 years studies have concluded that new storage projects don’t pay.”

The Yakima Project, jointly led by the U.S. Bureau of Reclamation and the Washington Dept of Ecology, is a collection of project proposals that include new irrigation dams, aquifer recharge, and fish passage at existing dams, and habitat restoration.  Of the proposed projects studied, only projects tied to restoring salmon showed a positive economic benefit.  The U.S. Bureau of Reclamation operates five irrigation dams in the Yakima Basin, and efforts are underway to help salmon get past the federal dams.

The report also concluded that development of water markets and water right trading could benefit the basin and offset the impacts of curtailments during drought years.

The WSU draft economic analysis for the Yakima Plan contains the following six points:

  1. The major storage projects of the Yakima Plan, when implemented together, are unlikely to provide positive net benefits.
  2. Net benefits for individual water storage projects are negative, with some exceptions under the most adverse climate and water market conditions.
  3. Instream flow benefits for fish are insufficient to support water storage infrastructure given the net benefit shortfall in out-of- stream use benefits, but proposed instream flows may be supportable through market purchases.
  4. Insufficient evidence exists to assess the economic efficacy of fish habitat restoration with a useful degree of precision.
  5. Reservoir fish passage projects are likely to provide positive net benefits through their pivotal role in supporting wild Sockeye reintroduction into the basin.
  6. Water markets show potential for reducing the impacts of basin-wide curtailment

The findings in the WSU Yakima Economics Analysis repeat a pattern starting in the early 1980s when economists and others have investigated new dams and water projects proposed in eastern Washington.  Taxpayers and ratepayers would pay for most of the cost, rather than irrigators who reap the benefits.  Starting in 2007, the Legislature has spent at least $200 million funding the Dept of Ecology’s Office of Columbia River to study proposals for new dams.   All proposals have failed economic tests, and no new dams have been built.

Eastern Washington is one of the most heavily dammed regions on earth.  Water projects for irrigators are paid for mostly by taxpayers and electric utility ratepayers rather than the irrigators who benefit.  When water scarcity occurs, CELP continues to encourage Washington State officials to implement conservation, improved water efficiencies, water markets, metering, and other affordable tools rather than costly and controversial new water projects.

“The water frontier is over,” said Osborn.   “We cannot dam our way out of water scarcity.”

Comments on the draft economic analysis can be submitted to Dr. Jonathon Yoder,

Links on economics, new water projects in eastern Washington –