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Spokane River wins long-overdue PCB-pollution cleanup plan

Federal Judge approves EPA plan to be completed by September 2024

News release

For immediate release

Contacts:

John Allison  jdallison@eahjlaw.com  (509) 951-3952

Marc Zemel marc.zemel@gmail.com  (206) 805-0857

Kathy Dixon kathleengdixon@gmail.com (509) 808-0118

Maggie Franquemont  MFranquemont@celp.org  (206) 829-8299

Ted Knight ted@tcklaw.com (509) 953-1908

Link:  Consent Decree

Spokane – The Spokane River and the hundreds of thousands who live near and along this treasured waterway have won a major victory with a federal judge’s approval of the U.S. Environmental Protection Agency’s (EPA) agreement to issue a mandated cleanup plan for cancer-causing PCBs polluting the river. The Judge’s ruling culminates a 10-year legal battle waged by Sierra Club and the Center for Environmental Law & Policy. The Spokane Tribe of Indians intervened in support of the federal lawsuit to enforce the federal law requiring an EPA clean-up plan after decades of inaction by the State of Washington.

“We need to get cancer out of the Spokane River,” said Tom Soeldner who volunteers with the Spokane River Team of the Upper Columbia River Group, Sierra Club. “We waited 15 years for Washington’s state government to do its job under the law before filing the lawsuit. After more than a decade in court, this win for the Spokane River means the cleanup plan finally will get done. Now EPA will be responsible for the Spokane River’s PCB cleanup plan.”

PCBs are dangerous to life including human life because they cause cancer and other diseases.  Tiny amounts in water concentrate as they move up the food chain. For many years, Washington’s Department of Health has issued a health advisory on human consumption of PCB-contaminated fish in the Spokane River.

Under the settlement, called a “Consent Decree,” approved today by U.S. District Court Judge Barbara Rothstein, EPA will complete a Total Maximum Daily Load (TMDL) for PCB’s within three years. A TMDL is a science-based approach to clean up polluted water in order to meet  State water-quality standards. A TMDL is a numerical value that represents the highest amount of a pollutant a surface water body can receive and still meet the standards.  For the Spokane River the TMDL will allocate the PCB pollution load to each of five identified PCB dischargers.

“EPA is the safety net when Washington State is unable to do its job cleaning up water pollution,” said John Allison, a Spokane River Team member. “We look forward to working with EPA in restoring and protecting the Spokane River for generations to come.”

PCB manufacture is banned in the U.S.  All PCBs entering the river are from old sources except for one:  Inland Empire Paper Co., which imports newsprint containing PCBs.  The other four government identified PCB dischargers are Kaiser Aluminum, and the Liberty Lake, Spokane County, and City of Spokane wastewater treatment plants. All five entities have discharge pipes that are permitted by the Washington State Department of Ecology (DOE). Currently the State’s pollution permits contain no limits on PCBs flowing into the Spokane River.  The TMDL will change how PCBs are regulated in the Spokane River watershed.
 

“We need clean, flowing water for the return of salmon,” said Kathy Dixon of the Spokane River Team. “Salmon along with our children and the river’s life are compelling reasons to comply with federal law and move forward with a science-based, river-protecting cleanup plan.

“The Spokane River will need ongoing community vigilance with government processes,” continued Dixon. “River advocates will need to ensure that the EPA develops a legally defensible PCB TMDL to meet all applicable water quality standards, including those of the Spokane Tribe of Indians.”

“We are happy to see this court case closed and look forward to a cleaner healthier Spokane River,” said Trish Rolfe, Center for Environmental Law & Policy’s (CELP) Executive Director.

Sierra Club and CELP are represented by Marc Zemel of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation. The Spokane Tribe of Indians is represented by Ted Knight.


Washington Water Watch: End of Year Edition

Dear Friends,

We are wishing you very happy holidays and hope you are doing well!

This year, as we all continued to be impacted by the COVID pandemic, CELP went through some big changes and accomplished exciting victories. We welcomed two new staff members, Maggie Franquemont as Staff Attorney, and Hillary Jasper Rose as Water Policy & Outreach Coordinator. We have adopted a hybrid working style as we build our team and the world continues to largely run over Zoom.

With the help of an incredible support system we achieved great things in 2021. CELP successfully encouraged the Department of Ecology to select the Nooksack River Basin (WRIA 1) as well as the Roosevelt Lake and middle tributaries (WRIA 58) as the next Washington basins to be adjudicated in coordination with the Nooksack Indian Tribe and Lummi Nation. We hosted our 3rd annual Clean & Abundant Water Lobby day as a virtual week long event helping pass bills for funding river basin adjudication, reducing plastic pollution, preventing seabed mining, and water re-use. CELP helped get a Watershed plan for WRIA 9 approved that would replace water used by new permit exempt well in the Green River watershed. We protected the Skagit River by submitting comments to Ecology in support of their denial of the proposed Golden Eagle water permit. We reached a settlement with the EPA on the Spokane River PCB levels. CELP also submitted comments to Ecology urging reform of Water Banking and the Trust Water Rights programs to curb water rights speculation.

We have accomplished a lot to protect our rivers. As we wrap up the year and look forward to our work in 2022, CELP has big goals. We plan to not only continue our work protecting waters in Washington but take a more proactive role in restoring our waters and fighting for more sustainable and equitable water policies and management.
You can help protect our waters by making an end of year gift to CELP. We are incredibly thankful to have met our $10,000 goal and match! Now our loyal supporter is increasing their donation to match donations dollar for dollar up to $15,000. Help us reach our new goal and be ready to tackle the legislative session and year ahead. You can also help further our mission by sharing our work with your friends and family.

You make our work protecting, preserving, and restoring waters in Washington possible! We are incredibly thankful for our supporters, members, partners, Board of Directors, volunteers, sponsors, staff, and community. Thank you for your dedication to protecting our water resources.

In this issue you will find an update on the Spokane River PCB case with a call to action, our comments on an Airway Heights water right application, information on the Salmon Recovery Plan, our thoughts on Puget Sound Partnership’s State of the Sound report, an article on water speculation, water and fish news, a recap on our Celebrate Water event, an announcement that we postponed our CLE workshop series with new dates TBA, and information on ways to support CELP.

Sincerely,
Trish Rolfe

Executive Director

Read Full Newsletter Here


Spokane River PCB Win & Call to Action

Spokane River wins long-overdue PCB pollution cleanup plan in EPA settlement

30-day public comment period opens:  please write in support

On December 1 in the Federal Register, the U.S. Environmental Protection Agency (EPA) published its settlement with Sierra Club, Center for Environmental Law and Policy, and plaintiff-intervenor, the Spokane Tribe of Indians, committing the agency to prepare a cleanup plan for cancer-causing PCBs that severely pollute the Spokane River.  For the River and life that depends on it, this settlement caps 25 years of advocacy, including 10 years of litigation filed by Sierra Club, the Center for Environmental Law & Policy, and intervenor Spokane Tribe of Indians. Our lawsuit sought to enforce the Clean Water Act mandate for an EPA cleanup plan, necessary because of decades of inaction by the State of Washington.

PCBs are a dangerous chemical that harms aquatic and human life, causing cancer and other diseases. Tiny amounts of the toxin concentrate as it moves up the food chain. The Washington Department of Health’s public health advisory, issued many years ago and still in effect, warns against consumption of PCB-contaminated fish in the Spokane River.

Under the settlement, called a “Consent Decree,” EPA will complete a Total Maximum Daily Load (TMDL) by September 2024. A TMDL is a science-based pollution cleanup plan.  This one will be designed to ensure that the Spokane River meets protective water quality standards issued by Washington state and the Spokane Tribe.

PCB manufacture is banned in the U.S. Most PCBs entering the Spokane River pre-date the ban, with one major exception: Inland Empire Paper Co. (IEP) recycles paper printed with imported inks that contain PCBs. 

The TMDL will require significant reductions in PCB pollution discharged to the Spokane River by the five industrial and municipal treatment plants located in Washington. In addition to IEP, Kaiser Aluminum and the Liberty Lake, Spokane County, and City of Spokane wastewater treatment plants each discharge PCBs to the river. All five discharge pipes are permitted by the Washington Department of Ecology, but these permits contain no limits on PCBs flowing into the Spokane River. The TMDL will change that.

The PCB cleanup plan is especially significant because of heavy use of the Spokane River by the public for recreation and the consumption of fish.
 

The settlement includes a 30-day public comment period. We will then present the settlement to the federal court for approval. Sierra Club and CELP are represented by Marc Zemel and Richard Smith of Smith & Lowney PLLC, a Seattle law firm specializing in Clean Water Act litigation. The Spokane Tribe of Indians is represented by Ted Knight.

Take Action and help a distressed river!  Deadline is January 3, 2022.

Click here to write your comment:

https://www.regulations.gov/commenton/EPA-HQ-OGC-2021-0828-0001

Consider making the following points:

  1. Most importantly, thank EPA and express your support for preparation of the PCB cleanup plan.  Public uses require a clean river.
  2. Insist that the cleanup plan be based on sound science. 
  3. Ask EPA to use state-of-the-art testing technology to measure PCBs.
  4. As a matter of human health and environmental justice, ask EPA to ensure that the cleanup plan complies with applicable water quality standards.

Contact the Spokane River Team for further questions:

John Osborn john@waterplanet.ws

Kathy Dixon kathleengdixon@gmail.com

John Allison  jdallison@eahjlaw.com

Tom Soeldner  waltsoe@allmail.net

Rachael Osborn. rdpaschal@earthlink.net


Washington Water Watch: August Edition

Dear friends of CELP,

As the summer winds down in this crazy year, I hope you all got a chance to get out and recreate on Washington’s amazing rivers and streams, a great way to recharge from the stress we are all experiencing. These waters are the life blood of Washington that should be protected and celebrated by all. But sadly, there are many who only see our waterways as a resource to be exploited harming fish and the public who rely on them. The impacts from Climate Change are only making a dire situation even worse. 

That’s why CELP continues our important work to protect, preserve, and restore Washington’s waters now and for future generations. But we can’t do it alone. We rely heavily on support from individuals like you, so if you are able please support CELP’s important work by donating on our website: www.celp.org

In spite of our work, sometimes our efforts fail, and that happened with our challenge to the flawed summer flow in the Spokane River Instream Flow Rule. The State Supreme Court ruled against us, and now the people and businesses in Spokane are the real losers. The Department of Ecology can now issue water rights that will drop the flow in the river to drought levels during the summer, making recreation on the river almost impossible.

In this issue you will find more information on this State Supreme Court ruling, Governor Inslee’s letters pausing the proposed Chehalis River dam, a bio of Celebrate Water’s guest speaker, the American Water Resource Association’s state conference event, and more. 

I also want to send out a big thank you to all of our Celebrate Waters Sponsors. They play a huge role in helping us do our important work!

 Sincerely, 

Trish Rolfe

Executive Director

trolfe@celp.org

PS. Please tune into Celebrate Waters Virtual event on September 17th and stay safe!

Read the Full Newsletter: https://conta.cc/2EQvkQg


Washington Water Watch: February 2020 Edition

Dear friends of CELP,

This year started off unusually warm and wet with Seattle experiencing its 3rd warmest January on record and the wettest start to the year in over a decade. January was Washington’s 12th warmest on record and among its least snowy. February has also had record-breaking warm days and there were numerous floods across Western Washington. This trend is worrisome for our water resources with more rain and less snow during the winter months leading to droughts during the summer. Thankfully we have received a lot of snow in the mountains in the last few weeks and our snowpack is now over 100% of normal. We will be monitoring what happens in the next few months to see if we will experience another drought. Stay tuned.

Meanwhile, we have been working hard in Olympia to protect Washington’s waters. This year’s legislative session has kept CELP very busy dealing with over a dozen water bills. But our hard work would not be possible without you. We rely on generous donations from our members and supporters to hold our lawmakers and agencies accountable for protecting Washington’s rivers and streams. If you haven’t renewed your membership for 2020, you can do it today on our secure website, www.celp.org.

In this issue you will find information about water banking, water bottling, the legislative session, a call to action, Clean & Abundant Waters lobby day, the Spokane River Instream Flow Rule, upcoming events, and Water Stories. 

Sincerely, 

Trish Rolfe

Executive Director

trolfe@celp.org

Read the Full Newsletter

Sol Duc Falls Olympic National Park by Julie Titone

Washington Water Watch: April 2019 Edition

Dear friends of CELP,  It’s been a while  since our last Washington Water Watch and CELP has been busy working to protect and restore Washington’s waters. This year is shaping up to be a critical year for water in Washington, as the Department of Ecology just declared a drought in  three  watersheds: The Upper Yakima, Okanogan, and Methow. This could be bad news for fish and our population of Resident Orca’s.

 

March was unprecedentedly dry, and it is likely to only get worse from here. The coming months are forecast to be warmer and drier than normal, putting more and more areas around the state at risk. The warmer the summers get with Climate Change; the more frequently droughts are likely to occur. The only way we can proactively combat this is to start planning now and encourage the state to prioritize sound sustainable water policy. All this makes CELP’s work more critical than ever, but our work would not be possible without supporters like you. We rely on our generous donations from our members and supporters to hold our lawmakers and agencies accountable for protecting Washington’s rivers and streams. Renew your membership today on our secure website.

 

In this issue you will find information about this year’s Celebrate Waters and GiveBIG campaign, CELP’s newest staff members, an upcoming Ethics Conference, a recap of CELP’s first ever Lobby Day as well as Winter Waters, a legislative wrap up and more.

 

Sincerely,
 Trish
Trish Rolfe
Executive Director
trolfe@celp.org

 

P.S. April 22nd is Earth Day and CELP will be working to protect Washington’s rivers and streams! You can help support that work by Making a donation today!

 

Click HERE to read the full report. 


Hirst Update: Watershed Restoration and Enhancement Committees

by Trish Rolfe
Last session, the Washington State Legislature passed a streamflow restoration law, ESSB 6091, in response to the Supreme Court’s

Hirst decision. Hirst changed how counties could approve or deny building permits that use permit-exempt wells for a water source.

The law, RCW 90.94 Streamflow Restoration, helps protect water resources while providing water for rural residents reliant on permit exempt wells. The law directs local planning groups in 15 watersheds to develop or update plans that offset potential impacts to instream flows associated with new permit-exempt domestic water use. The law splits up these watersheds into two groups: those with previously adopted watershed plans and those without.

The Nooksack, Nisqually, Lower Chehalis, Upper Chehalis, Okanogan, Little Spokane, and Colville basins all have previously adopted watershed plans. For these seven basins, local watershed planning units are to update their watershed plan in order to compensate for the impacts of new permit exempt well uses.
The law identifies the Nooksack and Nisqually basins as the first two to be completed. They have until February 2019 to adopt a plan; if they fail to do so, Ecology must adopt related rules no later than August 2020. Planning units in the Lower Chehalis, Upper Chehalis, Okanogan, Little Spokane, and Colville basins have until February 2021 to develop their plans. Until watershed plans are updated and rules are adopted in these seven watersheds, new permit-exempt wells require only payment of a $500 fee. The maximum withdrawal is 3,000 gallons per day per connection on an annual average basis.

Deschutes River – Photo from WA Dept of Ecology

Eight other watersheds do not have previously adopted watershed plans. They are Snohomish, Cedar-Sammamish, Duwamish-Green, Puyallup-White, Chambers-Clover, Deschutes, Kennedy-Goldsborough, and Kitsap. For these eight basins:

  • Ecology will establish and chair watershed committees and invite representatives from local governments, tribes, and interest groups.
  • The plans for these watersheds are due June 30, 2021.
  • New permit-exempt wells require payment of a $500 fee.. The maximum withdrawal is 950 gallons per day per connection, on an annual average basis. During drought, this may be curtailed to 350 gallons per day per connection for indoor use only.
  • Building permit applicants in these areas must adequately manage stormwater onsite.

CELP has been appointed to participate on the Snohomish, Cedar-Sammamish and Duwamish-Green watershed planning units, and we have volunteers participating in several others.

The law also provides $300 million until 2033 for projects that will help fish and streamflows. Watershed planning groups will recommend proposals for funding by Ecology to achieve this.

Litigation News: Freeing the Similkameen River and Dungeness River Rule Challenge

by Dan Von Seggern

CELP Continues Fight to Free Similkameen River

The long-running battle to remove this environmentally damaging and economically unjustifiable Enloe Dam continues. A major tributary to the Okanogan River, the Similkameen flows through 122 miles of potential salmon habitat in British Columbia and Washington. A fish-blocking dam was constructed on the River in 1922 and has not generated power since 1958. The Okanogan County Public Utility District (PUD), which owns the dam, is attempting to restart power generation at the dam. The power the dam would produce is not needed and would be much more expensive than the PUD’s current sources of electricity.

On September 13, along with the Sierra Club and Columbiana, CELP filed a Notice of Intent to Sue the Okanogan County PUD as well as the National Marine Fisheries Service (NMFS) and the Federal Energy Regulatory Commission (FERC) over the dam’s effect on ESA-listed Upper Columbia steelhead and Chinook salmon. The Notice is the first step towards filing a lawsuit under the Endangered Species Act. We contend that the dam unlawfully harms ESA-listed fish species, that the process of evaluating the dam’s impact on fish was inadequate, and that FERC unlawfully failed to consult with NMFS regarding the listed fish, as the Endangered Species Act requires.

In a separate action, CELP has asked the 9th Circuit Court of Appeals to review FERC’s giving the PUD additional time to begin construction. The Federal Power Act requires that construction be started within the period of a hydroelectric license, and allows only a single two-year extension. When the PUD failed to begin construction within the required time, FERC “stayed” revocation of the license, effectively giving the PUD additional time. CELP believes that FERC lacked authority to “extend” the license in this manner and that it should have allowed public participation in the license amendment process.

Dungeness River Rule Challenge

This case (Bassett et al. v. Ecology, Case No. 51221-1-II) is a challenge by a group of property rights activists and developers to the Department of Ecology’s Instream Flow Rule for the Dungeness River, WAC 173-518.  CELP supports the Rule, which provides for mitigated use of new permit-exempt wells while protecting instream resources.  After the plaintiffs filed suit against Ecology, CELP joined in the case as an intervener to argue in favor of the Rule. CELP and Ecology prevailed in Thurston County Superior Court, and plaintiffs appealed.   Division II of the Washington Court of Appeals heard oral argument in the case on October 18 and we are now awaiting the Court’s ruling.

Culvert Case Update: A Victory for Tribal Treaty Rights

by Dan Von Seggern

On June 11, an equally divided United States Supreme Court affirmed the 9th Circuit Court of Appeals’ decision in Washington v. United States (the “culvert case”). This long-running case, filed in 2001, involved fish passage-blocking culverts under roads owned by the State of Washington (or “the State”). The United States and a group of Indian Tribes filed suit seeking an injunction requiring the State to repair culverts under its control to restore access of fish, including salmon and steelhead, to more than 1,000 miles of upstream habitat. Restoring passage is expected to result in production of several hundred thousand more adult fish annually. This will be a significant boost for the State’s ailing salmon runs and for those who depend on the runs.

In 2013, U.S. District Court Judge Martinez found for the Tribes and ordered that the culverts be repaired. Judge Martinez held that the 1854-5 Stevens Treaties, by which the Tribes ceded vast amounts of land for settlement, would have been understood by the Tribes at the time as a guarantee that there would forever be salmon available to them. He further held that the fish-blocking culverts were an impermissible infringement on the Tribes’ treaty rights. The State appealed to the 9th Circuit Court of Appeals, which affirmed the decision.

The Supreme Court (without the participation of Justice Anthony Kennedy, who had been involved in an earlier aspect of the case) affirmed the decision without a written opinion. This decision means that the Order requiring the culverts be removed or repaired will stand and fish will again have access to the habitat which they need to recover and thrive. This decision is also a significant victory for Tribal treaty rights, in that the right to fish is now understood to include the right to habitat suitable for fish production.


Icicle Creek: a win for waters of Washington

News Release:  May 18, 2018

Fish Hatchery polluting Icicle Creek at center of ruling allowing Washington State to protect state waters

Contacts –

  • Dan Von Seggern, Center for Environmental Law & Policy (CELP),  dvonseggern@celp.org  206.829-8299
  • Kurt Beardslee, Wild Fish Conservancy, kurt@wildfishconservancy.org 425-788-1167

On May 14 the Washington Pollution Control Hearings Board (PCHB) ruled against the U.S. Fish and Wildlife Service (FWS), operator of the Leavenworth Fish Hatchery, and in favor of Icicle Creek advocates Center for Environmental Law & Policy (CELP) and Wild Fish Conservancy. Late last year, CELP and Wild Fish Conservancy appealed the state’s certification under Section 401 of the Clean Water Act for the federal hatchery to the PCHB. The FWS asked the PCHB to dismiss the appeal, arguing that state water quality certifications are not independently enforceable and cannot be effectively modified after a federal permit is issued, and therefore the challenge to the state certification was moot. The PCHB rejected the FWS argument. The PCHB concluded that state-issued Section 401 certifications are tailored to protect water quality in every state water body and are independently enforceable.

“This decision is a victory for protecting Washington’s waters,” said Dan Von Seggern, CELP staff attorney. “It affirms the State’s ability under the Clean Water Act to place meaningful conditions on a water user even where a Federal permit has been issued. The decision allows CELP and other water advocates to work through the courts to enforce these conditions.”

Icicle Creek flows out of the Alpine Lakes Wilderness through the Bavarian-themed town of Leavenworth, Washington, and supports important fisheries including endangered Chinook salmon and threatened steelhead.

“We commend the PCHB’s ruling against the US Fish and Wildlife Service’s Leavenworth National Fish Hatchery,” said Kurt Beardslee, director of Wild Fish Conservancy. “We believe State and Federal government facilities should be a positive example of environmental stewardship for the rest of the community. Unfortunately, this hatchery is not a good neighbor and has set a poor example. It is in fact the largest polluter of Icicle Creek.”

The Leavenworth National Hatchery was first constructed between 1939 and 1941 near Leavenworth, Washington, as a mitigation project for Grand Coulee dam. It is located on the banks of Icicle Creek approximately three miles from the confluence with the Wenatchee River. The hatchery has a long history of violating state and federal environmental laws, despite repeated attempts to bring it into compliance to protect Icicle Creek.

Wild Fish Conservancy and CELP are represented by Kampmeier & Knutsen, PLLC of Portland, OR.

Link:

Background

The U.S. Fish and Wildlife Service (USFWS) discharges a wide variety of pollutants into Icicle Creek from the federal hatchery located near Leavenworth, Washington. Pollutants released from the Hatchery to Icicle Creek include disease control chemicals, pathogens, nitrogen, phosphorus, antibiotics, chemicals used for disinfection and other fish culture purposes, residual chemical reagents, salts, and chlorinated water. The excess phosphorus discharged by the Hatchery has caused violations of the applicable water quality criterion for pH in lower Icicle Creek. This phosphorus loading also contributes to violations of water quality standards in the Wenatchee River.

The Clean Water Act is the main mechanism through which pollution of our waters is prevented, and the Hatchery is obligated to apply for a permit and to operate according to its conditions.

A National Pollutant Discharge Elimination System (NPDES) permit is required by the Federal Clean Water Act (CWA) and would place limits on pollutant discharges. States, using “401 certifications,” can compel the federal government to protect state waters. On July 28, 2017, the Washington Department of Ecology issued a draft Clean Water Act section 401 certification for a new permit. State certifications must include appropriate limitations and monitoring requirements to assure that the applicant for the Federal permit (USFWS) will comply with applicable effluent limits, prohibitions, standards of performance and appropriate requirements of state law.

For 37 years, the FWS operated the Leavenworth Fish Hatchery without a valid permit in violation of the Clean Water Act. On November 22, 2017 both a new federal permit and state 401 certification were issued. On December 21, CELP and Native Fish Conservancy appealed the state 401 certification to the PCHB. The federal permit was not appealed, and took effect on January 1, 2018. USFWS asked the PCHB to dismiss the appeal because Icicle Creek advocates had appealed the state certification, but not the federal permit.