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.

Check out our April edition of Washington Water Watch

Click here to read our newest installment of the Washington Water Watch newsletter.

This month, you’ll find articles introducing our new Staff Attorney, Dan Von Seggern, discussing the drought declaration in the state, the status of the Enloe Dam Hydro Project, a summary of the recently released”Freshwater Withdrawals in WA, 2010″ report, and more.

04172015 drought areas - dept of ecology

Okanogan PUD Takes Steps To Explore Enloe Dam Removal

salmon jumping Similkameen Falls, Colton Miller, July 2014

Salmon jumping Similkameen Falls. (photo: Colton Miller, July 2014)

CELP and partners returned to court on Friday, April 3, to challenge a water right that could reduce water flowing in Similkameen Falls, in north central Washington, to a trickle. The Falls, located on the Similkameen River just downstream of Enloe dam, are a popular scenic attraction and have important cultural and ecological values.

Okanogan Public Utility District (OPUD) purchased Enloe dam in 1953, but has not generated power since 1958.  After two failed attempts to re-electrify the dam in the 1990’s, OPUD obtained a federal energy license in 2013.  CELP challenged the water quality certification and won a decision that the proposal to divert 90-99% of the natural flows around the waterfalls lacked scientific foundation.

After oral argument on the water right appeal, Judge Gary Tabor of Thurston Superior Court ruled from the bench in favor of the Department of Ecology and OPUD.  For CELP, the courtroom saga continues a 10-year effort to restore and protect the Similkameen River, including opposition to two new dam proposals, the Shankers Bend and the Fortis BC projects, that are sidelined for the time being.

Search is on for a lead agency to remove Enloe dam

One very positive development has occurred in the face of continued litigation and local ratepayer opposition to the project’s $50 million price tag.  On April 6, OPUD Commissioners passed a resolution indicating willingness to work with CELP and its conservation partners in finding a lead agency for Enloe dam removal.  Both the Lower Similkameen River Band in B.C. and the Confederated Colville Tribes have endorsed the concept of dam removal.

OPUD is exploring all options, including its original plan to re-energize Enloe.  However, the case in favor of dam removal is persuasive:

  • Re-energizing the dam will be a major money-loser for local ratepayers;
  • De-watering Similkameen Falls is illegal, and CELP’s water quality challenge creates significant uncertainty about the amount of water available for power generation; and
  • Removing Enloe dam will clear the way for salmon and other species to access 300-plus miles of river and stream habitat, a huge opportunity for both fish and people.
salmon blocked by Enloe dam, Colton Miller, July 2014

Salmon, blocked at Enloe dam. (photo: Colton Miller, July 2014)

The ongoing legal challenge

CELP, American Whitewater and North Cascades Conservation Council have challenged a decision by the Department of Ecology to issue a water right to the Okanogan PUD for renewed operation of Enloe dam.  The water right appeal raises two issues.  First, as Andrea Rodgers of the Western Environmental Law Center, puts it:  “Ecology is required to determine whether granting a water right will harm the public interest before issuing a permit. Here, they propose to defer that decision until after the project is built, violating the four-test requirement for allocation of public water resources.”

Attorney Rachael Paschal Osborn described the second argument in the case:  “The new water right for the dam fails to protect instream flows as adopted into the Similkameen River rule. This directly contradicts a 2013 Supreme Court decision regarding the Skagit River, holding that these rules function as ‘water rights for the river’ and may be violated only in the most narrow of circumstances.

Economic studies show that re-energizing Enloe Dam doesn’t make financial sense as is, and will be even more expensive if minimum flow releases are increased.  OPUD, having spent $12 million to obtain a federal energy license for the project, is placing ratepayer dollars at substantial risk.  Depending on the outcome of the aesthetic flow studies to protect Similkameen Falls, OPUD may have far less water to divert for hydropower than originally permitted.

The river advocacy groups in the legal challenge are all members of the Hydropower Reform Coalition, and are represented by public interest attorneys Andrea Rodgers of the Western Environmental Law Center and Rachael Paschal Osborn and Dan Von Seggern of CELP.

Links –

Conservationists’ Petition for Review

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.

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.