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News advisory: Feb. 27, 2019
When water is flowing in the Spokane River during hot summer months, should water be protected for community recreational and aesthetic use, river fish, and wildlife? – or should the Department of Ecology allow it to be taken from the river by granting of more water rights?
Washington State Court of Appeals Division II
950 Broadway #300, Tacoma
9:00am, Thursday, February 28
Beloved and imperiled, the Spokane River flows through the second largest city in Washington state, cascading over spectacular waterfalls and cutting a deep gorge. In most summers, enough water flows in the river to support fishing, river rafting, and other outdoor recreation. River advocates are asking the court to hold the Department of Ecology (Ecology) to its duty to protect fish and wildlife, scenic, aesthetic and recreational values, and navigation, when establishing the minimum summer flows allowable for the Spokane River.
Nearly 2,000 comments, including boater surveys and aesthetic inventories, were submitted to Ecology during the public comment period on the draft rule. In setting instream flows, Ecology’s decision failed to account for boaters who use the Spokane River, fishermen who pursue the river’s wild redband trout, and businesses that depend on Spokane River recreation. Ecology also failed to conduct a basic assessment of the scenic values of the Spokane River as it flows through the gorge and Riverside State Park – important to users of the Centennial Trail and others.
Overall, Ecology ignored all public comments in support of protecting the Spokane River and adopted unchanged its flow rule of 850 cubic feet per second (CFS) – near-drought level river flows that will jeopardize the Spokane River and its public uses.
River advocates retained Dr. Doug Whittaker and Dr. Bo Shelby, experts in recreation and aesthetic flows from Confluence Research and Consulting, to evaluate appropriate flows. Dr. Shelby and Dr. Whittaker participated in establishing aesthetic flows for Spokane Falls, and are the foremost national experts on flows. They concluded that the Department of Ecology’s adopted flows are inadequate to support most types of recreational boating on the river. Higher flows in the Spokane River, when available, should be protected.
Spokane River fisheries need cold, abundant water. The Department of Ecology erred in reaching their “data-free” conclusion that 850 CFS is best for fish to justify its decision not to protect higher Spokane River flows. In response, petitioners submitted a report prepared by Prof. Allan Scholz, retired Eastern Washington University fisheries biologist. (Prof. Scholz authored a multivolume treatise on eastern Washington fisheries, and is one of the foremost experts on Spokane River redband trout.)
Prof. Scholz determined that the state’s flow rule – setting the Spokane River flow rate below the Monroe Street Dam in the summer at 850 CFS – is inadequate to protect and restore a healthy redband trout population, and that the scientific study prepared in support of the rate was flawed. The Department of Ecology could have accommodated the needs of river recreationists and fish without sacrificing fish.
“Our city owes its origins, its beauty, and a great deal of its past and present life to the Spokane River. It would be a betrayal of the river and our identity if we did not maintain healthy and aesthetic river flows.”
– Tom Soeldner, co-chair of Sierra Club’s Upper Columbia River Group based in Spokane.
The Department of Ecology has a duty under state law and the public trust doctrine to adopt flows that are fully protective of all public instream values, including fish and wildlife, recreation, navigation, water quality, and scenic beauty. Again, flows that are not protected are at risk to be diverted from the Spokane River for out-of-stream water uses, including Idaho pumpers, the city of Spokane, and the office of the Columbia River’s Spokane-Rathdrum ASR project.
Appellants are Sierra Club, Center for Environmental Law & Policy and American Whitewater, and are represented by attorneys Dan Von Seggern (CELP) and Andrew Hawley (Western Environmental Law Center).
We are now accepting applications for a Summer 2019 Legal Intern at our Seattle office.
We seek a legal intern with demonstrated interest in environmental issues to work on projects aimed at establishing protected instream flows. Qualified candidates will have completed their 2L year and taken an environmental law course. Coursework or clinical experience in administrative law is preferred. Exact internship dates are flexible, but will run from June – August 2019. Please email a CV, a writing sample, and references to Dan Von Seggern, Staff Attorney at email@example.com
Deadline for applications is March 1st.
In this issue, you’ll find articles about Election Day, our litigation work relating to the Enloe Dam and Dungeness River rule, our Annual Winter CLE, and more. Read the October 2018 issue of Washington Water Watch here.
CELP’s Water Policy Organizer Nick Manning will be presenting and discussing protection efforts for the Cowlitz, Lewis, Grays and Elochoman Rivers. Bring questions and a friend (or two).
Food and drink will be available. All are welcome to attend!
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.
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:
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.
by Dan Von Seggern
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.
Today, river advocacy groups notified federal agencies and a local public utility of their intent to sue over harm inflicted on Similkameen River endangered steelhead and threatened bull trout by Enloe Dam. New video evidence shows fish at the base of the dam unable to access stream areas above the dam that may be critical to their recovery. However, the Federal Energy Regulatory Commission (FERC), the National Marine Fisheries Service (NMFS), and the Okanogan Public Utility District (OPUD) have failed to reinitiate consultation to address how this new information affects a permit to construct a power generating facility at the dam. Today’s notice starts a 60-day clock until a lawsuit can be filed.
“This new evidence showing fish, most likely Chinook salmon, jumping at the base of Enloe Dam provides new evidence that FERC’s analysis that re-energizing Enloe Dam would have ‘no effect’ on the critically imperiled species that live in the river was incorrect,” said Andrew Hawley of the Western Environmental Law Center. “The upper Columbia River steelhead that use the Similkameen River for example are known to be better leapers than Chinook, and according to NMFS’s own biologists, it is very likely that steelhead are indeed navigating the falls below the dam. This fact requires a new analysis of the dam’s impacts under the Endangered Species Act.”
“This new information only adds to the body of evidence showing that leaving Enloe Dam in place is a mistake,” said Trish Rolfe, Executive Director of the Center for Environmental Law and Policy. “As we continue to look for ways to rehabilitate our flagging salmon and steelhead populations, it makes little sense to ignore the impact this project will have on the ability of these fish to access the 200 or so miles of viable habitat upstream of the dam.”
OPUD has faced strong local opposition to its plan to re-energize Enloe Dam due to environmental concerns as well as economic issues. Multiple economic analyses show that power generated by the project will cost far more than electricity from other sources, burdening ratepayers that live in one of the most economically disadvantaged counties in Washington. The PUD’s project would also continue to impact the culturally, ecologically and recreationally significant Similkameen Falls (also called Coyote Falls), which lies immediately downstream of the dam.
“The plight of Puget Sound orca starving for want of salmon combined with the fundamental lack of economic viability should lead to removing this century-old cement plug,” said John Osborn, physician and coordinator of Sierra Club’s Columbia River Future Project. “Fish jumping in vain at the base of Enloe Dam is yet another terrible reminder of federal agencies failing to make the correct diagnosis for salmon, steelhead, and other species in trouble. Fortunately, the Governor’s Task Force on Orca is now looking at removing Enloe Dam – as has occurred for restoring the Elwha River on the Olympic Peninsula and other rivers in Washington state.”
“OPUD’s FERC license allows it to operate Enloe until 2063,” said Jere Gillespie of Columbiana. “To avoid red ink, OPUD will have no choice but to pass the costs along to the ratepayers into the next generation. What makes sense for the Similkameen and for ratepayers is to free the river of this cement plug and not throw good money after bad. It’s more compelling to restore the river. Coyote Falls is an increasingly important regional attraction because of an expanding local and regional trail system, and salmon can be seen swimming above waterfalls to the base of the damA free flowing Similkameen will enhance economic growth for the local community.”
The groups note that they have been and remain willing to work with the PUD to develop a path forward for restoring the river that addresses ecological and cultural issues and the economic concern for ratepayers. The Western Environmental Law Center sent the notice on behalf of the Center for Environmental Law & Policy, Columbiana, and Sierra Club.
A broad coalition of conservation, sports, and fishing organizations today delivered a letter to the State Department asking for important changes to the 1964 Columbia River Treaty, which the United States and Canada are currently renegotiating. They are also encouraging residents to speak on behalf of the Columbia River’s future at a State Department “Townhall meeting” to be held in Portland on September 6, 5:30-7 p.m., at the Bonneville Power Administration.
“The renegotiation of the treaty offers a unique opportunity to improve conditions in the river by ensuring treaty dams are operated to provide sufficient flows for the express purpose of helping salmon and the river’s ecosystem,” said Greg Haller, Executive Director for Pacific Rivers. “River health, ‘Ecosystem-based function’ needs to be added to the Columbia River Treaty, co-equal with the two existing primary purposes of the treaty: hydropower production and flood risk management. Millions of residents and electrical ratepayers expect balanced management of the region’s hydroelectric facilities to ensure salmon populations recover and thrive. The treaty is an important prong of a basin-wide strategy for salmon recovery and we are asking the State Department for a course correction to improve river conditions in the U.S. and Canada for the benefit of fish, wildlife and people.”
In a letter sent to the lead negotiator, Jill Smail, U.S. Department of State, the requests include:
The Columbia River Treaty was originally ratified in 1964 to reduce the risk of floods in downstream cities like Portland, Oregon and to develop additional hydropower capacity. The Treaty resulted in building four major dams, three in British Columbia and one in Montana. Notably, consideration of the health of the Columbia River and its fish and wildlife populations were not included in the original Treaty. Not only did the construction of the dams result in the displacement of people, economies and cultures as a result of permanently flooded lands, it had a profound effect on salmon and other fish and wildlife species – and the communities that rely on them – on both sides of the border.
“For 17 days the world watched as the mother orca Talequah carrying her dead calf for a thousand miles, reminding us how precious and fragile is life that depends on Columbia River salmon,” said John Osborn, a physician who coordinates Sierra Club’s Columbia River Future Project. “River temperatures are rising, returning salmon face ever more massive die-offs, glaciers are melting and forests are burning. In this time of climate change we call upon the State Department to represent the values of the people of the Northwest in protecting and restoring the Columbia River. Water is life. ”
At its heart, Ecosystem-based Function is a way to achieve a healthier river and healthier fish and wildlife populations. It means operational changes that provide additional water during low and moderate flow years in the spring and summer to increase survival of juvenile salmon migrating downstream to the Pacific Ocean. It also includes fish passage and reintroduction of salmon above Grand Coulee Dam and into Canada, and to stop using the Upper Columbia River as a sacrifice zone.
More about the U.S. State Department’s Town Hall meeting in Portland:
The Columbia River Treaty Town Hall meeting is open to the public, and will take place in Portland at the Bonneville Power Administration’s Rates Hearing Room 1201 Llyod Blvd, Suite 200 (11th Avenue/Holladay Park Max light rail stop), from 5:30 p.m. to 7:00 p.m. This Townhall will follow the August 15–16 round of negotiations on the Treaty regime in British Columbia and take place in advance of the October 17–18 round of negotiations in Portland, Oregon. For more information on the Town Hall, including call-in details, please see the Federal Register Notice.
The United States and Canada are negotiating the Columbia River Treaty. We have a once in a lifetime opportunity to help protect and restore the Columbia River. On September 6, the U.S. State Department will give you an opportunity to provide input. Please take time to attend this Town Hall meeting – for the River and life that depends on the River.
When: Sept 6, 5:30 – 7 p.m.
Where: Portland, Bonneville Power Administration’s Rates Hearing Room, 1201 Llyod Blvd, Suite 200 (across the street from the current BPA Building)
Below are suggested messages that may help you in developing your own personal message to deliver to the State Department’s negotiating team for the Columbia River Treaty:
(1) “Ecosystem-based Function” must be included as a new primary purpose of a new Columbia River Treaty – co-equal with power production and flood management. At its heart, ecosystem-based function is a way to achieve a healthier river and healthier fish and wildlife populations. It means operational changes that provide additional water during low and moderate flow years in the spring and summer to increase survival of juvenile salmon migrating downstream to the Pacific Ocean. It also includes fish passage and reintroduction of salmon above Grand Coulee Dam and into Canada. The world watched as the mother orca Talequah carried her dead baby for 17 days 1,000 miles, calling attention to the starving orcas of Puget Sound — and once again underscoring the importance of Columbia River salmon.
(2) The River needs a voice during Treaty negotiations. The U.S. should add a representative for “ecosystem function” to the Treaty negotiating team.
(3) The U.S. and Canada have excluded tribes and First Nations from the negotiating teams — and this needs to be corrected. Under the laws of both countries it is clear this this Treaty impacts the shared resources held by tribes in the U.S., as well as those resources in Canada to which rights and title have not been extinguished.
(4) The River needs a voice during Treaty implementation. U.S. should add a new, third representative to the “U.S. Entity” that can represent the river’s ecosystem needs during treaty implementation.
The U.S. Entity today includes just two federal dam agencies – BPA and ACOE – neither has a record as a responsible steward of natural resources like wild salmon and steelhead, lamprey and other species. The U.S. Entity must include a new voice for the river and its health.
(5) Citizen input is needed. The U.S. should create an advisory committee to the U.S. Entity that allows stakeholders to understand and share information about the operation of the Treaty dams, and their impacts on communities and natural resources.
(6) Make informed decisions using a shared, transparent information base. Create a common analytic base between both nations and all those affected by re-establishing the collaborative modeling workgroup.
(7) We need best options for flood risk management. Residents in the greater Portland and Vancouver metropolitan area want to understand the costs, benefits and tradeoffs from today’s flood management strategies – as well as possible alternatives. In order to prepare, the U.S. Army Corps should conduct a basin-wide review of flood risk management.
For further Information, contact: