CELP Water Briefs – January 2015

Legal Challenge Filed Against Dungeness Instream Flow Rule The Olympia Resource Protection Council, a property rights protection organization in Sequim, has filed a lawsuit challenging the Dungeness River Instream Flow rule, adopted in 2012 by the Department of Ecology.  The ORPC complaint alleges a host of novel theories about Washington water law, including that fully protecting instream flows is outside Ecology’s authority.  The Dungeness watershed is over-appropriated due to issuance of municipal and agricultural rights that exceed supply.  The Dungeness River suffers from low flow problems that impede salmon passage, and in some areas groundwater is in decline or seawater intrusion is a concern.   The 2012 instream flow rule closes most of the watershed and requires mitigation for new rights.   Mitigation is facilitated by a water exchange, established and run by Washington Water Trust, which assists in providing water for new uses and instream flow restoration.

Alpine Lakes Wilderness – Are New Dams & Water Diversions in the Offing? CELP participates in the Icicle Work Group, a collaborative process seeking to find new water supply for the City of Leavenworth, as well as improve instream flows in Icicle Creek and other goals.  The IWG is evaluating a number of proposals, including increasing storage and water diversions from seven lakes in the Enchantment Lakes region of the Alpine Lakes Wilderness.   CELP policy advisor Rachael Osborn has posted a four-part series describing the Alpine Lakes proposals on her Naiads blog.  More information can also be found on the Chelan County Natural Resources Department website.  Chelan County co-sponsors the IWG along with the Department of Ecology’s Office of the Columbia River.

Cow Palace Dairy Liable for Yakima Groundwater Pollution On January 14, a federal judge in Spokane ruled that Cow Palace LLC is liable for disposing of its dairy manure in a manner that contaminates groundwater in the lower Yakima Valley. Cow Palace keeps approximately 7,300 milking cows at its dairy facility (along with another 3,700 calves, non-milking cows, etc.) which generate over 100 million gallons of manure annually. The dairy spreads this manure on corn and alfalfa fields as fertilizer, or stores it in lagoons and compost piles. The court found that Cow Palace applies the manure to fields in excess of agronomic rates, and that its lagoons and compost piles are leaching, all of which causes nitrates to percolate downward into groundwater. This in turn has contaminated groundwater that serves as a drinking water source for homes down-gradient of the dairy. As such, the Court held that Cow Palace’s manure “management” constitutes open dumping, causing a substantial and imminent endangerment, in violation of the federal Resource Conservation and Recovery Act or RCRA, and that Cow Palace and the corporate entities that control the dairy are liable. The case will go to trial on remedies and other issues. The decision is long, but worth a read.