Washington Water Watch (August 2014 Edition)

Did you miss our August Edition of Washington Water Watch in your inbox?

Click here to view the PDF version of our newsletter.

Don’t miss out on our update on the protection of Similkameen Falls and an excellent recap of the Columbia River Treaty Multifaith Prayer Vigils!

Similkameen Falls Focus of CELP Protection Efforts

Rachael Paschal Osborn, Senior Policy Advisor

BLM Similkameen Trail EA Map

Map of the Similkameen River Trail. Image credit U.S. Bureau of Land Management.

The Similkameen Falls sit below Enloe dam on the Similkameen River, located about 4 miles northwest of the town of Oroville in Okanogan County.  The Falls are an important cultural resource for the Lower Similkameen Indian Band and the Confederated Colville Tribes.   The Similkameen is also a popular recreational destination for hikers and boaters, with the 2011 designation of the Similkameen River Trail, which ends at the Falls, and which will soon become a segment of the new, 1200-mile long Pacific Northwest National Scenic Trail .  The River is also designated as part of the Greater Columbia Water Trail.

Enloe dam has not generated power since the 1950’s, and sits like a concrete plug in the river.  Okanogan Public Utility District (PUD) however, plans to build off-river turbines adjacent to the dam and divert all of the water out of the river during summer months, de-watering the Similkameen Falls.  The Department of Ecology endorsed this plan by issuing a 401 Certification and a water right to the PUD, both conditioned on maintaining a paltry 10 to 30 cfs flow over the Falls.

Having recently successfully settled the Spokane Falls 401 Certification litigation, thus re-hydrating Spokane’s centerpiece waterfalls, CELP joined with partners to appeal the Okanogan PUD 401 Certification to the Pollution Control Hearings Board.  Trial was held in April 2013, and Bo Shelby and Doug Whittaker of Confluence Research & Consulting – the leading national experts on river management for recreation and aesthetics – provided testimony about the aesthetic and recreational values of the Similkameen Falls, and the failure of Ecology’s permit to protect those values. Conservation Group Expert Report 2/4/13 The Board agreed that Ecology and the PUD had not adequately studied aesthetic flows, and directed the two agencies to prepare a new aesthetic flow study after the project is built. CELP et al v. Ecology and Okanogan PUD, PCHB Final Amended Order 8-30-13.

As a result Okanogan PUD faces substantial uncertainty as to how much water will be required to remain instream and therefore unavailable to power its turbines.   A 2011 study by Rocky Mountain Econometrics demonstrates that the Enloe Project is already an economic loser, and with less water available, will likely become a major liability for Okanogan PUD and its ratepayers.

In August 2013, Ecology inexplicably issued a new water right to the PUD, authorizing it to divert 600 cfs from the river and maintain a 10/30 cfs minimum flow – the exact flow that the Pollution Control Hearings Board had just rejected.  CELP and its partners again appealed, and the Board agreed, imposing conditions similar to those contained in the amended 401 Certification.

However, without knowing whether it is even possible to establish an aesthetic flow for the waterfalls, Ecology could not make the important finding that the water right will not cause harm to the public interest, one of the four tests for a new water right.   Ecology should have denied the water right application or issued it as a preliminary permit.  Because of the Board’s faulty legal reasoning – that the public interest determination can be deferred to a future date – CELP has appealed the Board’s order to Thurston County Superior Court.

This month, CELP signed on to a letter prepared by the Hydropower Reform Coalition, critiquing the PUD’s new Aesthetic and Recreation Management Plans, HRC comments on Enloe Aesthetic and Recreational Reports 8-19-14, which fail to address the minimum flow bypass questions and recreational values of the Similkameen River.   The concern is that the PUD’s continuing minimization of the uncertainty surrounding instream flow issues has significance for the economic viability of the project.   Okanogan ratepayers are already facing big rate increases.  The Enloe Project is going to make matters much worse.

There is a better path, and that path is to consider dam removal.  The Enloe Project is a perfect example of ancient infrastructure that cannot reasonably be upgraded to achieve cheap hydropower.  It’s time to think about taking out Enloe dam and restoring a free-flowing Similkameen River.   The fishery and water quality benefits could be substantial.

CELP is happy to be working in concert with its partners American Whitewater, Columbiana, North Cascades Conservation Council, Sierra Club, Confluence Research & Consulting, Rocky Mountain Econometrics, Conservation Northwest, and the Hydropower Reform Coalition.   We are also grateful to our attorneys, Andrea Rodgers, Kristen Larson and Suzanne Skinner, and to our members and the foundations who have supported us in protecting the beautiful Similkameen Falls.   It takes a village to protect a waterfall.

Stay tuned for more news on the future of the Similkameen River and Falls, and Enloe dam.

Columbia River Treaty Prayer Vigil Recap

By Adam Wicks-Arshack, canoe-builder, educator, and CELP Member

On August 1st 2014, a series of prayer vigils began in Astoria, Oregon.  For 16 consecutive days along the Columbia River, multi-faith prayer vigils were held to provide a forum for Columbia River citizens to gather to pray, sing, share stories and break bread.  These vigils not only helped raise awareness about the Columbia River Treaty, fish passage, and the health of the river, but most importantly it brought diverse groups of people together from all walks of faith.

Adam Wicks-Arshack begins the prayer vigil at Fort Colville, Kettle Falls, WA. Photo by John Roskelley.

Adam Wicks-Arshack begins the prayer vigil at Fort Colville, Kettle Falls, WA. Photo by John Roskelley.

Some of the highlights:

Astoria, OR – Over 50 people gathered at the waterfront park in solidarity against coal export terminals, LNG exports and the continued exploitation of the Columbia River.  While this community has been fighting for some time against these exploitations, the community organized by the Columbia Riverkeeper found great joy in the opportunity to gather around something positive.  To pray for the health of the Columbia River, to pray for the return of the salmon to the upper river and to share stories about their own personal connection to the Columbia River.

Longview, WA – On Sunday afternoon, over 150 people, along with drummers and singers, greeted the Cowlitz Tribe’s canoe family as they paddled into the Prayer Vigil at Willow Grove.  Five different Christian faiths from the community were represented and the chief of the Cowlitz Tribe shared some very powerful words of hope and wisdom.  Many speakers spoke and prayed about the importance of returning the salmon above Grand Coulee dam and back into Canada, as this is something that would positively impact the river as a whole.  Two beautiful songs were sung by all of the attendees, “Come Down to the River to Pray” and “The River Song.” Click here for The Daily News Online coverage.

Hood River, OR – A very diverse group of Columbia River citizens gathered to dance, sing and pray at the waterfront park in Hood River, OR.  The vigil began with a dance which came from Crow Indian tradition and was followed by all of the attendees sharing their personal connection to water and the Columbia River.  The vigil then moved down to the river where people were instructed to touch the water and throw it into the air following a very moving prayer and harmonica rendition of “Shanandoah.” Click here for Hood River News Coverage.

Wanapum Village Longhouse (Hanford/Priest Rapids Dam) – The Wanapum Tribe hosted a very powerful vigil at their longhouse.  Delicious first foods were shared along with songs, prayers and stories.

Two Rivers, WA (Confluence of Spokane and Columbia River) – Hosted by members of the Spokane Tribe and faith leaders from Spokane, 50 Columbia River citizens gathered to share stories and pray for the Columbia River.  This was the first vigil to be located up-river of Grand Coulee and the mood was more somber but each spoke of hope for the future.  An Okanagan woman who drove over 8 hours to attend the vigil sang “Amazing Grace” in her traditional language followed by the whole group singing it in English.  Many elders spoke, as did knowledge-keepers from visiting tribes.  Speakers spoke about the importance of the Columbia River Treaty and the value of salmon, a healthy river, and leaving a lasting legacy for the youth.

Kettle Falls, WA – About 30 people from Inchelium, Kettle Falls, Northport and the surrounding area gathered at St. Pauls Mission.  Everyone then walked out to the sharpening stone, which overlooks the now flooded historic salmon fishing site of Kettle Falls.  The vigil began with a beautiful Columbia River Song and a moment of silence to remember the falls, the salmon and all those who fished the powerful waters of Kettle Falls.  The vigil continued with people sharing poems, prayers songs, and reflections on a river that once was.

Trail, BC – About 20 people gathered at Gyro park.  The vigil opened with a greeting in the Okanagan language from the Chief of the Lower Similkameen Band.  All attendees shared their connection to the Columbia River and a young child sang a beautiful River Song with her grandfather.

Nakusp, BC – Over 50 people came together on the shore of Upper Arrow Lake in Nakusp to pray for the health of the Columbia River.  Very powerful prayers, songs and stories were shared by people of Sinixt heritage.  Prayers from the Christian faith were also shared along with songs and stories from locals of the Nakusp area. Before a wonderful meal, all attendees were asked to wash their hands in the river, to connect with the waters.

Revelstoke, BC – Fifteen people from the Revelstoke area gathered to pray for and reflect on the Columbia River.  The vigil opened with a thank you and acknowledgement to local First Nations followed by songs and prayers directed towards the river.  The attendees of the vigil then went down to the river and attached a prayer or a thought to a rock and tossed it into the river.

Adam Wicks-Arshack is a master canoe-builder.  In 2013 he and other voyageurs worked with Tribal youth to build canoes, then paddled canoes upriver from Pacific Ocean to the Columbia River headwaters.  Their canoe journey brought regional focus on modernizing the Treaty and  returning salmon home to ancestral spawning waters in the Upper Columbia River.  Adam is working with CELP on our Ethics & Columbia River Treaty project.  To view films of his voyage click here.

Other Media Coverage of the Prayer Vigils:

KPLU– “Tribes Urge U.S., Canada To Update Columbia River Treaty

Oregon Live, The Associated Press– “Native American tribes hold vigils for Columbia River salmon

Spokane River Gets Its Day In Court

By Rachael Paschal Osborn, CELP Senior Policy Advisor

“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.Spokane River Fish Advisory

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.

Celebrate Water Silent Auction

We are excited to announce there will be a Silent Auction during this year’s Celebrate Water Reception. Auction packages include beach and mountain vacations, artwork, exotic wines, and more!

Click here to read the most up to date list of items you can bid on to support CELP.

100% of proceeds from the auction will benefit CELP!

Rural Water Supply versus Instream Flow Protection

Update on Ecology’s New Stakeholder Process and Recent Litigation

by Rachael Paschal Osborn, CELP Senior Policy Advisor

Can Washington’s Water Resources Program ‘just say no’ to new water rights that impair instream flows and harm fish, wildlife and water quality? It’s a question CELP has asked for 20 years, and unfortunately, recent Department of Ecology efforts indicate the answer is still no.

As you may recall, in October 2013, the Washington Supreme Court issued its decision in Swinomish Indian Tribal Community v.  Ecology:  a decision that underscored that instream flow rules are bona fide water rights that  Ecology could not subsequently abrogate in favor of permit exempt wells. That decision has prompted  Ecology to explore with the counties alternative means of supplying water for new development.  At first Ecology was talking only with the counties.  At CELP’s insistence, Ecology opened up its conversations to include interested Tribes and CELP in a new a new stakeholder process, called Rural Water Supply Strategies, to craft responses to the Swinomish decision and others that constrain the use of exempt wells.  For more on the Swinomish decision and its implications see Suzanne’s article, “No Quick Fixes to Competing Demands for Water” (WA-AWRA Newsletter, June 2014).

The first meeting occurred on  Monday, June 16th. CELP is concerned that the process  might become be better described as  “Undermining Washington’s Instream Flow Program”  since the majority of participants asked that Ecology subordinate instream flows  to new wells for rural development. Of particular concern:  suggestions to create a blanket exemption to allow new exempt wells regardless of impacts on instream flows, and to use “out of kind” mitigation to fund habitat restoration disconnected from actual depletion of instream flows caused by new wells.

CELP’s representatives to Ecology’s process include board member Dave Monthie of DLM & Associates; Melissa Bates, founder of Kittitas water advocacy group Aqua Permanenté; and our legislative director, Bruce Wishart.  Melissa and Bruce delivered important messages on June 16, including that:

  • Instream flows are water rights that are entitled to the same protections as out-of-stream rights
  • Ecology is not authorized to utilize out of kind mitigation to substitute for instream flow depletion.
  • When all the water in a basin is fully allocated for existing rights and environmental flows, Ecology must close the basin and ‘just say no’ to new rights.  At that point, full mitigation is needed.
  • Climate change will only make matters worse as snowpack and glaciers recede.   Alternative water supply must focus on demand management, including conservation, use of reclaimed water, and changing our water ethic.

Click here for a complete list of CELP’s Proposed Water Management Strategies. For a detailed analysis of the Swinomish decision, CELP will continue to attend Ecology’s Rural Water-Instream Flow process through September and into the 2015 legislative session, actively promoting the public interest in Washington’s rivers and aquifers.

2014 Ralph W. Johnson Award

CELP is pleased to announce that the recipient of our 2014 Ralph W. Johnson Award is Ann Aagaard. Please join us as we present this award at our annual Celebrate Water event on June 25, 2014 at Ivar’s Salmon House in Seattle, WA. Read on to learn more about Ann’s many accomplishments, penned by her husband, Knut Aagaard. 

For over 40 years Ann Aagaard has been a faithful and wise steward of our state waters and land, and of our communities, whole-heartedly committed to good government as the means by which public stewardship is exercised.  In that good work she has been joined by very many dedicated people.

Ann Aagaard

Ann Aagaard, 2014 Recipient of the Ralph W. Johnson Water Hero Award. Photo credit Andrea Perry.

Ann has been deeply involved with the League of Women Voters on state-wide issues of shoreline and natural resource management; on the Washington State Ecological Commission dealing with the consequences of proposed toxic waste incineration in Lind, of excessive water demands from resort development in the Methow, of disturbances from port development in Whatcom County, and with the review of all proposed Department of Ecology regulations; on King County’s Boundary Review Board, Agricultural Task Force, and Growth Management Task Force; on County Executive Randy Revelle’s Executive Advisory Committee; on the Department of Ecology’s SEPA Advisory Committee, Shorelines Review Task Force, and others; and on the Department of Agriculture’s Forest Research Advisory Council.  Not least, acting simply as a citizen she has repeatedly called Bothell, King County, the Department of Ecology, the Wenatchee National Forest, and other powers into public accountability.  She successfully challenged the logging industry and the U.S. Forest Service to protect rare and endangered plants in the Wenatchee Mountains.  She taught biology at Cleveland and Roosevelt high schools, Sunday School and confirmation classes in her home church, was Campfire Girls leader, PTSA Legislative Chair, and president of Friends of Saint Edwards State Park.  The list is long and diverse.

Her informed and principled engagement includes a number of landmark events: the 1978 Washington Supreme Court decision in S.A.V.E. vs. City of Bothell which broadly defined legal standing for environmental advocates; the state-wide Shoreline Master Program Guidelines negotiated with the Department of Ecology in 2003; and perhaps most striking, the remarkable confluence of events in King and Snohomish counties that extended over three decades and resulted in the North Creek Valley being not the site of a shopping center, but rather of a nationally recognized 58 acre wetland restoration abutting salmon-bearing North Creek and serving a core teaching function at the adjacent hillside campus of the University of Washington Bothell and Cascadia Community College.  The North Creek events tell a remarkable story in land use planning and execution, intricate and illuminating, a story that would make a wonderful dissertation on land use.

Ann’s commitment to good stewardship has been remarkably broad, intelligent, and sustained, and utterly unselfish as she has given lavishly of herself to people and causes beyond counting.

Join CELP in honoring Ann at Celebrate Water on June 25!

The CELP Washington Water Leadership Award

Senator Karen Fraser

Senator Karen Fraser. Photo from her website:

CELP’s Washington Water Leadership Award honors individuals and organizations who publicly advocate for sustainable water resource stewardship in Washington and the Pacific Northwest.

This year we will be giving the inaugural Washington Water Leadership Award to Senator Karen Fraser. Senator Fraser represents Washington State’s 22nd Legislative District, the State Capitol area, and currently chairs the Senate Democratic Caucus.  She has long been a champion of responsible water policy, and has been a vigorous advocate throughout her elective office career.  She has spoken out in the State Legislature, in county and city government, in regional and national organizations, and at international forums. She also serves as Adjunct Faculty in the Master of Public Administration Program at The Evergreen State College where she includes an introduction to the intergovernmental complexities of water policy in her classes.

We will honor Senator Fraser with the award at Celebrate Water on June 25, 2014. We hope to see you there!

Rachael P. Osborn knocks one out of the box: Cornelius v. WSU

On May 23, the Washington Supreme Court heard oral arguments in Cornelius et al v. Washington Dept of Ecology et al, known by many as the “Washington State University golf course case.”  Rachael Paschal Osborn represents the appellants: Scotty Cornelius, the Sierra Club, and the Palouse Water Conservation Network.  This case is complicated with many important issues but a key one is whether Ecology is correct in allowing old water rights that were never called “municipal” to be treated as “municipal” under fairly recent Municipal Water Law statute.  Ecology’s expansive interpretation of “municipal right”  means that Washington State could revive, long unused water rights,  and put part of those rights to a brand new golf course in the middle of the Palouse.  CELP and other community groups filed a “friend of the court” brief as did several Tribes in support of the Cornelius plaintiffs.

Rachael did a fantastic job arguing the case in front of the nine Supreme Court justices. You can rehear the entire argument (about 20 minutes) here .

We expect the Supreme Court will issue its decision in 6-8 months.