CLE: Fish, Water, and Health: Water Quality Standards in Washington

Continuing Legal Education (1.0 Credits)

Professor Catherine O’Neill Seattle University School of Law

June 25, 2014 from 4:00-5:00pm at Ivar’s Salmon House

Click here for registration information.

This event takes place in conjunction with CELP’s Annual Event, Celebrate Water. You can attend just the CLE or BOTH! 

Fish, Water, and Health: Water Quality Standards in Washington

Eating fish is the primary way that humans are exposed to PCBs, mercury, and many other toxic pollutants. We know these chemicals cause cancer, permanent neurological damage, and other harms. Yet fish, if they aren’t contaminated, are an excellent source of protein, omega fatty acids, and other nutrients. Doctors would like to see people eat more, not less, of this healthful food. So the question becomes: how much fish can we safely consume? Everyone knows that Washington’s current fish consumption standard is unreasonably low, but the state has been reluctant to adopt a more protective standard, like that of Oregon, because a more protective standard will require more stringent pollution and clean-up standards for Washington’s waterways—standards that industry asserts are unachievable.

Professor Catherine O’Neill of Seattle University School of Law will provide new insights into the legal and scientific complexities underpinning this hot button policy issue. Professor O’Neill has written extensively on the legal issues underpinning this important policy decision that implicates civil rights, environmental justice, human health and natural resource protection, including: Fishable Waters (American Indian Law Journal, 2013); No Mud Pies: Risk Avoidance as Risk Regulation (Vermont Law Review, 2007); Mercury, Risk, and Justice (Environmental Law Reporter, 2004); and Variable Justice: Environmental Standards, Contaminated Fish, and “Acceptable” Risk to Native Peoples (Stanford Environmental Law Journal, 2000).

Read Professor O’Neill’s recent OpEd with Frank James on fish consumption in The Seattle Times here.


Biography of Catherine O’Neill

Professor O’Neill was a Ford Foundation Graduate Fellow at Harvard Law School. She came to the Northwest in 1992 as an environmental planner and air toxics coordinator for the Washington State Department of Ecology. From 1994 to1997, she was a Lecturer at the University of Washington School of Law. From 1997 to 2001, Professor O’Neill was Assistant, then Associate Professor at the University of Arizona College of Law. She is a Professor at Seattle University School of Law and is a Faculty Fellow with the Law School’s Center for Indian Law & Policy.

Professor O’Neill’s research focuses on issues of justice in environmental law and policy; in particular, her work considers the effects of contamination and depletion of fish and other resources relied upon by tribes and their members, communities of color and low-income communities. She has worked with the National Environmental Justice Advisory Council on its Fish Consumption Report; with various tribes in the Pacific Northwest and the Great Lakes on issues of contaminated fish and waters; and with environmental justice groups in the Southwest on air and water pollution issues. Professor O’Neill has testified before Congress on regulations governing mercury emissions from coal-fired power plants. She has also served as a pro bono consultant to the attorneys for the National Congress of American Indians and other tribes in litigation challenging these mercury regulations. Professor O’Neill is a Member Scholar with the Center for Progressive Reform.

In Honor of One of the Northwest’s Greatest Leaders: Billy Frank, Jr.

 Billy FrankToday, we lost one of the nation’s and the state’s greatest leaders:  Billy Frank, Jr.

Billy Frank, a Nisqually tribal member, changed history.  He helped spark the grassroots resistance of tribal people in the late 1960s and 1970s against Washington State’s illegal policy of prohibiting fishing off-reservation. Billy was arrested over 50 times during the “fish wars” as were many other tribal leaders.  That struggle ended up in the courts.  United States v. Washington, also known as the Boldt decision, made the 20 treaty Indian tribes in western Washington co-managers of the salmon resource with the State of Washington and re-affirmed the tribal right to half of the harvestable salmon returning to western Washington. 

Billy did not rest after that monumental victory, but ceaselessly advocated for stewardship of the blessings we enjoy here in the Northwest: the fishery and the environment that supports and sustains us all.  His advocacy was grounded in the wisdom of his family, his tribe, and the generations that preceded him.  Billy’s activism ended up restoring habitat destroyed by hydroelectric plants, protecting tribal lands, and promoting cooperative management of natural resources.  Most recently, Billy took up the contentious issue of Washington’s fish consumption rate—as a civil rights and an environmental issue—urging the Governor not to increase the “acceptable” exposure rate to carcinogens in fish to increase industry profits.

CELP was honored to have Billy serve on its honorary board of directors for many years.  In 2012, CELP awarded the Northwest Indian Fisheries Commission, which Billy headed for thirty years, its Ralph W Johnson Award in 2012 in honor of the Commission’s work to preserve the waters of this state for all Washingtonians.  As CELP said at that time: “In these days when the government agencies tasked with protecting our waters, fish, and wildlife are relegated to protecting their budgets, the advocacy of the Commission has been a critical force in preserving the public’s interest in our rivers, streams, and aquifers.”     

We at CELP offer our deepest condolences to Billy’s wife and family, his colleagues and friends at the Commission, and the members of the Western Washington tribes that the Commission represents. 

We are all grieving the loss of a leader and a friend who worked to unite us all, never flinched from a tough position, and whose warmth and wicked sense of humor kept us going.  The world is less vibrant with his passing. 

Ethics and the Columbia River Treaty

Righting Historic Wrongs

Tuesday, May 13, 2014 at Gonzaga University

Join us for a one day conference as we seek to modernize the Columbia River Treaty, restore health to the river and return salmon to ancestral spawning waters, and establish a water ethic as foundational for resolving international water conflicts.  You can view the conference program here.

RSVP by May   Please share with others interested in ethics, rivers, stewardship and justice.  

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Give BIG with The Seattle Foundation on May 6!

Next Tuesday, May 6, is The Seattle Foundation’s GiveBIG Day! Donations made to CELP through The Seattle Foundation’s website today will be stretched thanks to The Seattle Foundation and GiveBIG sponsors.

Even better, if you donate through GiveBIG on May 6 you could be randomly selected for a Golden Ticket that wins you a $100 Starbucks gift card and gives CELP an extra $1,000 from The Seattle Foundation & other sponsors.

Make a donation on May 6, share with your friends, and be a part of Seattle’s biggest day of giving of the year!  Bookmark the site to make your gift online here.

Thank you for your continued support of CELP!

The Seattle Human Rights Commission Stands Up for a Protective Fish Consumption Rate as Human Rights Issue!

Today the Seattle Human Rights Commission passed Resolution 14-01 calling on Washington State to Raise the Fish Consumption Rate to that of Oregon’s at 175 g/day using a risk level of 10-6 to ensure that all Washingtonians, even our highest fish consumers, are protected in the free and equal exercise of our human rights to health and our own means of subsistence. This is a huge step forward for public health and human rights.  And better still the Commission is calling on all of us to urge the Governor and Ecology Director Maia Bellon to act NOW and adopt the rule that science, public health, and human rights clearly demand.

This is how the Human Rights Commission made the connection between the fish consumption rate and human rights….

Everyone has a human right to health and to live in conditions that will ensure their health. Polychlorinated biphenyls (PCBs), dioxins, and mercury are a few examples of toxic substances persistent in state waterways. Because chemicals accumulate in fish tissue, fish consumption is the primary route for human exposure to chemical pollutants. High fish consumers, such as Native Americans or people in other communities whose diets include fish and shellfish, are at a particularly high risk. But everyone who eats fish harvested from Washington’s waters is at risk of cancer due to the chemicals found in our waterways. A more protective FCR accompanied by an appropriate risk factor will set more stringent pollution and clean-up standards for Washington’s waterways to ensure that even high-fish consumers in our state will be protected from unsafe exposures to harmful substances.

What can you do?

The Washington State Department of Ecology is now in its rule-making process to adopt new human health criteria in the Water Quality Standards for Surface Waters of the State of Washington, Chapter 173-201A WAC. Join the Seattle Human Rights Commission in making your voice heard on this important issue!

Pick up a phone, and call The Washington State Department of Ecology as well as Governor Inslee’s Office.  Your message could be as straightforward as the following:

For Ecology:  Director Maia Bellon (360-407-7001)


Hello, my name is __________, and I would like to thank Director Bellon for taking initiative in reassessing Washington’s human health criteria in the Water Quality Standards for Surface Waters. I urge the Washington State Department of Ecology to raise our fish consumption rate to at least 175 g/day with a risk of 10-6 (“ten to the negative sixth”) to protect the health and human rights of all fish consumers. Thank you.”


Governor Jay Inslee: (360-902-4111)


Hello, my name is __________, and I would like to thank Governor Inslee for taking initiative in organizing an informal advisory committee on Water Quality Standards to help him make an informed recommendation on the draft CR-102 rule. I urge Governor Inslee to recommend a fish consumption rate of at least 175 g/day with a risk of 10-6 (“ten to the negative sixth”) to Director Bellon to protect the health and human rights of all fish consumers. Thank you.”

And thank you!!!  The full text of the resolution follows: 


Resolution 14-01: Calling on Washington State Department of Ecology to Raise the Statewide Fish Consumption Rate

WHEREAS, all people are born free and equal in dignity and rights; and

WHEREAS, the Seattle Human Rights Commission is committed to protecting and advocating for justice, human rights, and the equal treatment of all people who live and work in Seattle; and

WHEREAS, the City of Seattle was declared to be a Human Rights City on December 10, 2012, committing itself to protect, respect and fulfill the full range of inherent human rights for all as set forth in the Universal Declaration of Human Rights and numerous other international human rights treaties; and

WHEREAS, health is an internationally-recognized human right outlined in Article 12 of the International Covenant on Economic, Social, and Cultural Rights; and

WHEREAS, Article 1 of the International Covenant on Civil and Political Rights, which the U.S. has ratified, and Article 1 of the International Covenant on Economic, Social, and Cultural Rights, which the U.S. has signed, both provide that “in no case may a people be deprived of its own means of subsistence”; and

WHEREAS, Article 20(1) of the U.N. Declaration on the Rights of Indigenous Peoples establishes and protects the right of indigenous peoples “to be secure in the enjoyment of their own means of subsistence” and Article 20(2) creates a basis for “just and fair redress” where indigenous peoples are deprived of these rights; and

WHEREAS, a state’s fish consumption rate is used to set safe and acceptable levels of pollutants that may be released into a state’s waters while still protecting the health of its citizens who consume fish harvested from the state’s waters; and

WHEREAS, a state’s fish consumption rate directly impacts its water quality standards and human health criteria; and

WHEREAS, the State of Washington has a fish consumption rate of 6.5 g/day; and

WHEREAS, Washington State’s Department of Health advises Washingtonians to consume two 226 gram servings of fish per week, a recommendation that substantially exceeds Washington State’s fish consumption rate; and

2014 Legislative Session Overview

By Bruce Wishart, CELP’s Government Affairs Specialist

The 2014 session is now well behind us and it’s time to review what progress was made on water issues in Olympia this year.  Some political observers have described the 2014 legislative session as one of the least productive sessions on record.  Strong differences between the House and Senate, combined with the fact that this was a “short” or 60 day session (and an election year), made it difficult for agreement to be reached on most topics.  Nevertheless, legislators engaged in a vigorous debate on lots of issues, including water resources and water quality issues.  CELP, working together with tribes and other environmental groups, helped lead efforts this session to defeat a number of bills that would have seriously impacted our waters.

While there were fewer water resources related bills introduced than we have seen in subsequent years, the heated debate over rural development and exempt wells continued.  Local governments, agricultural interests, and developers all supported legislation offered in the House (HB 2288) which would have stripped away authority from the Growth Hearings Board to oversee decisions by local government to permit rural development in areas where water supplies were scarce.  This bill followed in the wake of the Board’s decision in Hirst v. Whatcom County, which affirmed and built upon prior court decisions holding that local governments have an obligation to ensure that water is legally available for new development before approving comprehensive plans or permitting new projects.  Despite the Growth Management Act’s multiple directives that counties determine water availability before approving land use development, the proponents of HB 2288 argued that the Hearings Board had overstepped its bounds.  CELP and tribal representatives opposed the bill and, thankfully, it did not advance.

In the Senate, Senator Honeyford (R-Yakima) introduced SB 6467, which would have overturned a recent Washington Supreme Court decision, Swinomish Indian Tribal Community v. Ecology, which held that Ecology improperly authorized exempt well use despite clear evidence that the wells would deplete minimum instream flows for the Skagit River, adopted by rule.  SB 6467, again, opposed by both CELP and the tribes, was also defeated.

Several other bills were offered on the topic of local “water banking” in both the House and the Senate (HB 2760, HB 2596, and 6239).  Water banks allow for new water users to purchase “credits” to offset the impact of their water usage in areas where new development would impact instream flows and other existing water rights.  While CELP supports that approach generally, we were concerned that these bills might encourage local governments to move forward with water banks without having the technical expertise to properly assess the validity of the rights being banked and to conduct the trading properly.  In the end, these bills also fell by the wayside.

On the water quality side, five bills were introduced by the Cattlemen and the Farm Bureau in an attempt to strip away Department of Ecology’s authority to regulate “nonpoint” agricultural water quality problems.  “Nonpoint” pollution refers to diffuse sources of pollution—such as cattle manure in streams they use for watering.  Once again, these bills were introduced in response to  a  recent Washington State Supreme Court decision, Lemire v. Ecology, which  affirmed that Ecology had clear authority under state law to prevent farms from discharging pollution into the waters of the state.  A variety of bills were introduced on this topic (SB 6087, 6288 and HB 2472, 2478) which would have either eliminated the agency’s authority outright or, in the alternative, placed many restrictions on their ability to exercise it.  CELP working again with other environmental groups and tribes stopped these bills dead in their tracks.  The discussion over this authority will continue this summer in a Water Quality and Agriculture working group created by Ecology Director Maia Bellon to discuss how water quality requirements will be enforced, among other topics.  (CELP accepted Ecology’s invitation to l participate in the working group; there are only a handful of few environmental representatives on it).   A fifth bill, HB 2454, allows an initial investigation of water quality trading.  After considerable effort, CELP ensured that this bill was amended to our satisfaction.  The bill is on the Governor’s desk awaiting his signature.

The Legislature’s last order of business was approval of “supplemental” budgets.   Since the state operates on a two year, “biennial budget,” the supplemental budgets adopted this year were, for the most part, “course corrections” amending the 2013-14 biennial budget adopted last year.  For this reason, the debate lacked much of the drama we saw last year on the main budget.  One area in which there was a great deal of controversy was the state Supplemental Capital Budget, which funds construction projects.  This year, for the first time since 1996, the House and Senate could not come to agreement on a Capital Budget.  Among other things, the collapse of negotiations on this budget sank efforts to create a legislative study group designed to develop recommendations on anticipated referendum to be introduced in 2015 to finance large scale water projects throughout the state.  The legislative study group would have been charged with developing a multi-billion dollar revenue source to fund controversial water storage projects, such as those proposed for the Yakima Enhancement Project, as well as water projects that enjoy broad support, including those designed to address harm from stormwater runoff.

From the Docket

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.

Support a No Discharge Zone in Puget Sound

Last spring, CELP, along with other groups working to protect Puget Sound, wrote to Department of Ecology’s Director Maia Bellon urging her to propose a petition to the United States Environmental Protection Agency to establish a No Discharge Zone (NDZ) for all of Puget Sound, including the Straits. 

Wonderful news:  Director Bellon has done just that!

What is a No Discharge Zone?  

A NDZ is a body of water where discharging sewage from boats, whether treated or not, is prohibited.   Under current law, treated sewage may be discharged anywhere in Puget Sound, and untreated sewage may be discharged as long as the boat is more than three miles from shore.

EPA Region 10, where Washington is located, is the only region without an NDZ.  Yet, there are more than 80 NDZs nationwide.  Puget Sound is a state and national treasure-but it is imperiled.  The evidence is overwhelming: beach closures, contaminated shellfish, dead zones in Hood Canal, the list goes on.  As Billy Frank, Chairman of the NW Indian Fisheries Commission, has said, and said often, healthy salmon migrate out of the Nisqually River only to become sick as they move through lower Puget Sound to the ocean.

Establishing a NDZ is a key strategy in the Puget Sound Partnership’s Action Agenda. We can make that strategy become a reality by submitting comments supporting a NDZ. Here’s how to do that:

There is a 60-day Public Comment Period on DRAFT NDZ Petition. 
Ecology is requesting public comment on a draft petition for a No Discharge Zone in Puget Sound in Washington State. The Draft Petition is also being sent to EPA for their input.

Please send your comments by Monday, April 21, 2014 to:

Amy Jankowiak,
Washington Department of Ecology
Northwest Regional Office
Attn: Amy Jankowiak, 3190 160th Ave SE, Bellevue WA 98008

The 4th Annual Environmental Issues Slam

CELP is proud to once again sponsor the annual Environmental Issues Slam, hosted by Washington Foundation for the Environment, on Tuesday, April 22nd at 6:30pm.

Six schools that include strong environmental instruction in their curriculum will be presented by students making five minute presentations.  The students have the length of their presentation to convince the audience that their issue is the most important.  Audience members will vote on the most persuasive presentation and the winner will win a $1,000 grant for environmental education in their school.   We look forward to seeing what these great students come up with!

Find out more from the 2014 Environmental Issues Slam Announcement!

CLE Alert: Climate Change: The Rules are Changing

On April 25, 2014, you are invited to join CELP for a Continuing Legal Education workshop entitled, Climate Change: The Rules are Changing.

We will address current changes and challenges in policies, standards and regulations at local, state, and national levels (and internationally as they impact Washington).  Areas of focus will include: shoreline development, public trust litigation; and legal standing status.  The event is co-sponsored with Futurewise and the Seattle University Law School.

We invite you to view the most up-to-date program and register online through the Seattle University portal here.