Washington Water Watch 
October 2016

In This Issue
Dungeness River Rule Challenge Update
Hirst Decision
Help Protect Salmon Runs on the Chehalis!
December CLE
Save the Date: Olympia Fundraiser
Leavenworth Fish Hatchery Case Hearing
Keep Our Rivers Flowing!
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Upcoming Events
December 1
CELP Climate and Water Issues CLE

2100 Building in Seattle
CELP's full day December CLE will be focused on protecting water resources and habitat in the face of climate change.

December 7
South Sound Waters
5:30-7:30 pm
Steam Plant
Join CELP and co-hosts for an evening of food, drink, and conversation on the current and future state of Washington's water resources! 

December 9
Leavenworth Fish Hatchery Suit Hearing
U.S. District Court
825 Jadwin Ave
Richland, WA 99352
Fall News: Litigation Updates Abound!        

Dear Members of CELP -
Fall has brought the rain, and several big water rights legal decisions. On Friday, October 21, Thurston County Superior Court Judge Gary Tabor upheld the Instream Flow Rule for the Dungeness River basin, denying a challenge from a group of property owners and developers, and in early October the Washington State Supreme Court held that counties must ensure water is legally available before permitting development. CELP supports these decisions, and you will find more information about them in this issue.
Even with these recent successes, Washington's water resources are still in jeopardy. Many rivers and streams around the state still lack the protection of a minimum instream flow, a water right for fish and other instream resources, and other rivers struggle to meet Instream Flows because the water is over appropriated. That's why CELP's work to protect and preserve Washington's rivers and streams is so important. 
Also in this issue, Ecology has released an Environmental Impact Statement (EIS) on the Chehalis River Basin Strategy. The Chehalis Basin Strategy is an ambitious collection of potential actions to address the challenges of extreme flooding and degraded river habitat. CELP is concerned that some of the alternatives in this EIS would be harmful to fish. Public Comment on the EIS is due November 14, 2016.
There is no end to water resource issues in this state, and that's why CELP has served as Washington's water defender since 1993. We are a small organization, but we are strategic and effective. CELP relies on donations from our loyal members like you to be able to do this work, so if you haven't renewed your membership for 2016 please consider doing it today at our secure website, www.CELP.org.
Trish Rolfe
Executive Director

P.S. If you are interested in joining CELP's Board of Directors please contact me at the email address above.

Court Upholds Dungeness Instream Flow Rule that Protects River and Fish
by Dan Von Seggern

On Friday, October 21, 2016, Thurston County Superior Court Judge Gary Tabor upheld the Instream Flow Rule for the Dungeness River basin. The ruling denied  a challenge from a group of property owners and developers. CELP intervened in this matter to defend the Rule, working with the Department of Ecology. CELP Staff Attorney Dan Von Seggern argued the case along with Ecology's attorneys.

The Dungeness River - photo by Steve Farquhar
The Dungeness Rule was developed over a 20-year period 
through a collaborative process that included state, local, and Tribal governments, property owners, environmental groups, and water users. It strikes a balance by protecting sreamflows, fish, and senior water users, while still providing water for responsible development. Water for development is provided through a water bank, which allows agricultural users to transfer a portion of their water rights into trust to be used as mitigation, so that streamflows are not depleted by withdrawals of groundwater for new homes. 

Plaintiffs claimed that the rule was arbitrary and capricious or 
illegally adopted because it failed to provide unlimited water for "business as usual" residential development. In upholding the Rule, Judge Tabor held that it was not unlawful and that Ecology did not exceed its authority when adopting it. He also reaffirmed that permit-exempt wells are subject to the "first-in-time" system of water appropriations used in Washington.

CELP believes that the Dungeness Rule provides a "road map" for protecting instream flows in other areas of the state, including the 33 Water Resource Inventory Areas that do not yet have instream flow rules.

The case is Bassett et al. v. Ecology, Thurston County case No. 14-2-02466-2.

Nooksack River in Whatcom County
Washington State Supreme Court "Hirst" Decision Protects Instream Flows
by Dan Von Seggern

  I n an important new groundwater use decision, the Washington Supreme Court held that a county must ensure water is legally available before permitting development. This means that County land use planning must take water availability into account, and the County may not simply rely on Ecology's instream flow rules to approve development.   Whatcom County v. Western Washington Growth Management Hearings Board  (" Hirst ") involved a challenge to Whatcom County's Comprehensive Plan ordinance. Under the Growth Management Act, counties develop Comprehensive Plans that designate certain areas for particular types of uses. A County's  GMA plan must "protect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water." Among other types of use, the GMA requires that counties set aside land for "rural" development. This rural element must include measures regulating development to protect water resources.

Like other parts of Washington, Whatcom County faces increasing pressure on its water supplies, and most of the available water has already been spoken for. Ecology's Nooksack River instream flow rule establishes instream flows for the Nooksack River and other streams in the basin. The Nooksack Rule closes most of the county to further appropriations of water, but says nothing about permit-exempt wells. The County's rural land planning ordinance merely incorporated Ecology's Rule - like the Rule, it did not address permit-exempt wells. This meant that building permits in rural areas could be issued without any review of whether the wells would harm other users or impair instream flows.
Hirst challenged the County's rural land planning ordinance, on the grounds that it failed to protect rural water resources because it did not address rural permit-exempt well use. The Board agreed, finding that the Comprehensive Plan's Rural Element did not adequately protect water resources. The Court of Appeals reversed the Board, holding that because the County's planning ordinances were consistent with Ecology's Rule, the County need not further regulate groundwater use. This ruling left Whatcom County's groundwater essentially unprotected, as there were no limitations on the use of permit-exempt wells in much of the county. Hirst then petitioned for review by the Washington Supreme Court (CELP submitted an  amicus curiae  brief supporting Hirst  et al .). The Supreme Court's October 6th decision reversed the Court of Appeals, and held that the County's Comprehensive Plan did not meet the GMA requirements.

Chehalis River
Chehalis Basin Strategy: Public Comments Accepted until 11/14

by Elan Ebeling

The Washington State Department of Ecology will be accepting public comments on their Chehalis Basin Strategy until
Monday, November 14th.
The plan seeks to ameliorate the two issues of damaging floods and degraded fish habitat in the Chehalis River Basin, and consists of several alternatives including a flood-retention dam near Pe Ell in the headwaters of the Willapa Hills, as well as a variety of land use management and environmental projects. Potential strategies to reach both the fish and flooding goals are described in the Ruckelhauser Center Alternatives Report.

The Chehalis River Basin - photo from WA dept. of Ecology

The Department of Ecology has also released an  Environmental Impact Statement (EIS) , which outlines the impact of the different recommendations on flood control as well as aquatic species and habitat. 

Of the several options proposed, Alternative 1 originated from the 2014 Governor's Work Group and involves building a dam to control flooding in the Chehalis River basin. Although this alternative includes some provisions for habitat restoration, it does not adequately address the problems for declining salmon runs and other aquatic life that will be caused by building a dam. According to the EIS, "as compared to the other action alternatives, Alternative 1 would result in more impacts to native salmon and aquatic species as a result of permanent and large-scale changes to the Chehalis River and floodplain caused by a Flood Retention Facility."

CELP has serious concerns about the environmental impact that a dam would have on the Chehalis Basin. Although a Flood Retention Facility would reduce flood damage, the harm to endangered fish runs and other aquatic species would be immense. The damage caused to native fish runs due to migration blockage, changes to habitat in the reservoir area, and permanent alteration of the river's natural flow would far outweigh any benefits of the proposed habitat restoration work.

There are other alternatives proposed in the Strategy that would involve a combination of the revitalization of the natural floodplain and habitat restoration. CELP supports options that both allow the floodplain to retain its natural flow and take measures to reduce the impact of flooding on communities. 

CELP urges our members to submit comments to Ecology on this issue. We cannot afford to invest in a plan that would actively harm endangered fish runs in the Chehalis.

December 1st Climate and Water Issues CLE

CELP's annual full day winter Continuing Legal Education workshop will be held on
Thursday, December 1st at the 2100 Building in South Seattle, and will be focused on protecting water resources and habitat in the face of climate change. Stay tuned for information on the full agenda and speakers.

CELP has applied for 6.5 credits including 1 ethics credit for this CLE.

SAVE THE DATE: CELP Olympia Fundraiser on December 7th!

South Sound Waters
Wednesday, December 7, 2016
4:30-7:00 pm
Old Steam Plant, 113 Thurston Ave NE Olympia, 98501

Join CELP and co-hosts for an evening of hors d'oeuvres, drinks, and conversation about the current and future state of Washington's water resources!

Leavenworth National Fish Hatchery - photo by John Osborn
December Hearing on CELP's Motion for Summary Judgement in Leavenworth Fish Hatchery Case    

On December 9th, the U.S. District Court in Richland, WA will hear CELP's motion for summary judgment in the Leavenworth Fish Hatchery unpermitted discharge case. 
The motion is on the issue of liability - CELP is asking the court to rule that the Leavenworth National Fish Hatchery is violating the Clean Water Act by discharging without a permit. The hearing will be open to the public. 

In September of 2015, CELP and Wild Fish Conservancy filed action against the U.S. Fish and Wildlife Service for the operation of the federal Leavenworth Fish Hatchery facility without a permit for 36 years. Pollutants discharged from the hatchery have harmed the water quality of Icicle Creek and the Wenatchee River. 
Puget Sound from Discovery Park, Seattle
Obama Administration Forms Federal Task Force on Puget Sound Restoration

On October 18th, the Obama Administration announced the formation of a federal task force dedicated to Puget Sound restoration efforts. The task force will be focused on three priority areas: stormwater management, shellfish sustainability, and habitat protection, and will include $248 million dollars from EPA, the State of Washington, and tribal governments to go towards improving estuary health. In addition, nine federal agencies have signed a memorandum of understanding aimed at improved coordination on the issue. 

The federal government's dedication of resources to Puget Sound restoration will provide a huge boost to state, local, and tribal efforts.

Thanks for taking the time to read Washington Water Watch!  Thanks to your help, CELP has accomplished much but, as you can see, more needs to be done. You can support our work by making a donation online here, or mailing a check to: 

85 S Washington St #301, Seattle, WA 98104 

The Center for Environmental Law & Policy is a statewide organization whose mission is to protect, preserve and restore Washington's waters through education, policy reform, agency advocacy, and public interest litigation.

If you care about a future with water, please become a CELP member today!
You can reach us at:  206-829-8299 or  email us .