CELP Water Briefs – February 2015

High Court Issues Decision in Cornelius vs. Ecology & WSU

On February 12, the Washington Supreme Court issued its decision in Cornelius vs. Department of Ecology and Washington State University. Scott Cornelius, along with the Palouse Water Conservation Network and Sierra Club Palouse Group, challenged WSU’s water rights because of the foot-per-year decline in the sole-source aquifer that serves the community, and WSU’s decision to build and irrigate a golf course notwithstanding the disappearing groundwater.

In a 6-3 split, the court affirmed Ecology’s approval of the WSU water right and rejected all of the Cornelius claims. CELP will report in detail on this case next month but, in a nutshell, the decision upholds the Municipal Water Law, finding that WSU’s unused community domestic water rights did not relinquish prior to adoption of the 2003 municipal water law. Despite not using its water rights for more than 50 years, the court found that WSU has been “reasonably diligent” in putting its water to use.   The court also ruled that the requirement to maintain a “safe, sustaining yield” of groundwater (ie, to avoid groundwater mining) is intended only to protect senior water right holders, not junior users or the public.  A history of the disappearing groundwater saga can be found at the PWCN website.


Treaty Talks – A New Documentary About Salmon Restoration in the Upper Columbia

In the summer and fall of 2014, four intrepid adventurers paddled 1,240 miles upstream on the Columbia River from Astoria, Oregon to Canal Flats, B.C. via hand-hewn dugout canoes.  The paddlers have released a new film that examines the potential for salmon restoration in the Upper Columbia through the lens of their journey.  The 35-minute movie, Treaty Talks: Paddling Up the Columbia River for People and Salmon, takes the viewer up the river and into the lives of the Spokane and Colville Tribes kids who carved the dugout canoes, along with many others who dream about and are dedicated to return of the salmon to both U.S. rivers (such as the Spokane and San Poil) and British Columbia.

The Columbia Canoe Journey was sponsored by Voyages of Rediscovery, and is an inspiring and beautiful film.   The movie is sponsored by Upper Columbia United Tribes, a consortium of five tribes in the Upper Columbia basin that serves to protect and restore the natural resources of those tribes – covering 2 million acres and lands and waters located within the states of Washington and Idaho.


UCUT Seeks Public Input on Salmon Reintroduction Plan

Upper Columbia United Tribes (also known as UCUT) has been instrumental in promoting discussion about salmon reintroduction above Chief Joseph and Grand Coulee dams.  UCUT has now released for public comment the Phase 1 Plan for Upper Columbia Basin Fish Passage and Reintroduction Project.  Comments on the plan are welcome and due to UCUT on February 27, 2015.   UCUT’s Phase 1 Plan follows on the NW Power & Conservation Council’s October 2014 adoption of the Columbia Basin Fish & Wildlife Program. The NWPC program calls for a phased approach to study and implement reintroduction of anadromous fish (salmon, steelhead, eels and other species) to areas where fish migrated historically, but which are now blocked due to dams and other passage barriers.


Court of Appeals Rules Against GMA-Water Sustainability in the Nooksack Watershed

Whatcom County routinely issues land use permits in areas where Nooksack River instream flows are not met and water quality problems persist.  When the County adopted land use regulations that failed to address these water problems, citizen Eric Hirst and Futurewise challenged them as inconsistent with the Growth Management Act (GMA) and the 2011 Supreme Court decision in Kittitas County v. EWGMHB.   The GMA Hearings Board affirmed, but on February 23, the Court of Appeals reversed the Board in Whatcom County v. Hirst, finding that, as long as county land use regulations are “consistent” with Ecology’s instream flow rules, counties need not control permit exempt water use to protect water resources. In a ruling eligible for the Judicial Circularity Hall of Fame, the court held that because Ecology did not address permit exempt groundwater use in the Nooksack rule, therefore county GMA regulations are not inconsistent if they also do not address permit exempt uses. The unsustainable use of exempt wells, which are harming Whatcom County waterways, was not addressed by the court.

The court’s reasoning is based in part on Ecology’s “friend of the court” brief which, astonishingly, fails to discuss the legal precedents previously won by the agency and its director, former AAG Maia Bellon. Of particular interest is the court’s fracturing of the hydraulic continuity rules (requiring integrated management of ground and surface waters) set forth in the 2000 Postema v. PCHB decision. CELP filed a friend of the court brief, pointing out basic rules of water law such as “first in time first in right” and that exempt wells are no longer de minimis uses. Washington water chaos will continue and worsen, thanks to the failure of the Department of Ecology, and the courts, to recognize that water is a finite, but infinitely valuable, public resource.