Water: law/policy/politics/ethics/art/science

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When Will Salmon Return to the Spokane?

Salmon Chief Spokane Falls (Luke Wiley photo)

Salmon Chief sculpture at Spokane Falls. Artist Smoker Marchand. Photo by Luke Wiley Photography,

Not just sockeye, but wild sockeye, are returning to the Washington and British Columbia Okanogan country in record-breaking numbers, right now.  Lynda Mapes tells the wonderful story in yesterday’s Seattle Times, “On Columbia, ‘just add water’ seems to be working.”

Water flows are critical to salmon’s ability to get up the river, around the dams, and home to natal spawning grounds.  For Okanogan sockeye, the water spills at Columbia River dams ordered by Judge Redden, as part of the epic Columbia hydropower system Endangered Species Act lawsuits, are proving their merit this year with sockeye’s return.  And just as critical, the Native Nations of the Okanogan Nation Alliance have been the leaders in calling the salmon home — through hard work, collaboration, negotiation, and faith.

When will salmon — in this case Chinook and steelhead — return to the Spokane River?  The “calling home” has begun, with official discussions of fish passage at Grand Coulee and Chief Joseph dams, with the Spokane City Council’s endorsement of the NW Power Council’s proposal for return of salmon to the Upper Columbia, and even with the Salmon Chief sculpture installed at the base of the Spokane Falls in May.

And maybe, just maybe, the Washington Department of Ecology will come to understand its role to ensure enough water in a critical spawning and rearing area for our future salmon, when it adopts an instream flow for the Spokane River later this year.   So far, Ecology has not seen its place in this calling of the salmon home.

But it’s not too late.

Salmon will return to the Spokane.  People with vision, please visit here.




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Tribes & First Nations Issue Columbia Fish Passage Paper

Fish Passage White Paper (2-14-14) Cover Page

Fish Passage & Reintroduction Into the U.S. & Canadian Upper Columbia River (2014)

A new analysis issued by Columbia Basin Tribes and First Nations surveys historic salmon migration to the Upper Columbia and proposes a four-step process to study reintroducing salmon via fish passage at Grand Coulee and Chief Joseph dams in the U.S., and Keenleyside, Brilliant and Waneta dams in British Columbia.

The study, “Fish Passage and Reintroduction Into the U.S. and Canadian Upper Columbia River” is authored by several intertribal organizations representing 15 Native American Tribes in the U.S. Columbia basin, and several First Nations in British Columbia.   The study provides a brief history of the construction and management of Columbia River dams and the consequent devastating impact on salmon populations and the native peoples who depended on salmon for food, trade, and culture.

Prior to dam construction, 1.1 million sockeye, Chinook, steelhead and coho salmon returned to the rivers above Grand Coulee, of which about 644,000 fish were harvested by tribal members.  Total salmon consumption ranged from 6.8 to 13.1 million pounds per year.  Salmon was a key component of the diet of Upper Columbia Tribes and First Nations prior to extirpation.

The survey of rivers and lakes that once supported salmon species is impressive. In the U.S. that list includes the Spokane, Little Spokane, Hangman, Sanpoil, Kettle, Colville, Pend Oreille, and Kootenai Rivers.  In British Columbia, salmon inhabited the Kootenay, Slocan, and Salmo Rivers, and the Columbia River lakes all the way to the headwaters, including the Lower and Upper Arrow, Windermere and Columbia  Lakes, and others.

The Tribes propose a multi-step process to evaluate fish passage technology, donor fish stocks,  the quantity and quality of habitat, and hydrosystem operating changes that would be necessary to accommodate salmon reintroduction.   Studies would also evaluate the socio-economic benefits of returning salmon to the Upper Columbia basin, for Tribes and First Nations, and non-native peoples, including recreational, subsistence and commercial fishers.

The study was prepared as part of the preparation for negotiations over the Columbia River Treaty between the United States and Canada, expected to get underway this year.

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Water and an Open Door Will Bring Wild Salmon Home

Elwha River salmon range map (Nat'l Park Service)

Seven salmonid species will return to Elwha River headwaters now that the dams are out.
(National Park Service graphic)

The time has arrived to restore healthy population of wild salmon to the Columbia River watershed.   Four articles published in newspapers around the region in recent days discuss essential ingredients for salmon restoration throughout the Columbia River watershed (including in Canada):  water and passage.

Tom Stuart, chair of the Save Our Wild Salmon coalition, explains why water spills at dams are needed in order to bring wild salmon back to Idaho in meaningful numbers.  Failure to breach the 4 lower Snake dams has created a crisis, and more flow over the dams is essential to push the juvenile salmon downstream.  See “Idaho and its chinook deserve an expansion of water spills” (Idaho Statesman, Jan. 27, 2014).

Dan Chasan at analyzes the federal government’s latest salmon recovery opinion for the Columbia River’s gauntlet of dams.   The last 4 versions of this plan have been struck down by the courts, and the latest draft doesn’t cut the mustard either.   At issue is the competition between putting water through hydropower turbines versus spilling it over the top to speed juvenile salmon on their way to the ocean.  Under the federal plan, once again, hydropower wins and salmon lose.  “Fed’s latest Columbia River plan: play me an old-fashioned melody,” (Daniel Jack Chasan,, Jan. 27, 2014).   Why have the courts let the feds off the hook for nearly 20 years?

From British Columbia, a recent interview with tribal fisheries policy experts Bill Green and Paul Lumley examines how an updated Columbia River Treaty could help get salmon up and over Chief Joseph and Grand Coulee dams into Canada (past the Canadian dams) and on to the headwaters.  As Green notes, the smashingly successful return of sockeye to the B.C. Okanagan “is a testament to the power of salmon when you give them an opportunity to do wonderful things.”  See “Canadian Columbia River salmon reintroduction emerges as Columbia River Treaty review issue” (Aaron Orlando, Revelstoke Times Review, Dec. 27, 2013).

And if that’s not enough positive salmon thinking for you, consider that the last chunk of Glines Canyon dam was blasted out of the Elwha River yesterday, freeing up passage for Chinook and steelhead to migrate into Olympic National Park. “Demolition blast expected at Glines Canyon Dam” (Jeremy Schwartz, Peninsula Daily News, Jan. 26, 2014).  (You can watch John Gussman’s video of the blast if you’re into that sort of thing.)

The fish are there, just waiting for the water and an open door to push on through . . . .

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Spokane River Instream Flow Rule to be Launched

Spokane Low Flow (2010)

This graph shows the lowest flow of the year, every year between 1891 and 2010, as measured at the Spokane gage (just downstream of Monroe St. Bridge).

The Washington Department of Ecology announced today that it is launching an effort to protect instream flows in the Spokane River.   This is good news for river advocates, but must be taken with a dose of salt.

The Spokane River needs some help when it comes to instream flows, which have been steadily in decline for decades (see graph at right).   The problem is largely due to groundwater overpumping in both Washington and Idaho.  The Spokane Aquifer feeds the Spokane River, so pumping groundwater has a direct and negative impact on instream flows.

In Washington, river flows are protected by formal adoption of a rule that specifies how much water should be in the river during certain dates throughout the year (usually two week intervals).   These rule-based flows are basically a water right for the river.  Pre-existing water rights that were issued before adoption of the flow rule are not affected, and water rights issued after the flow rule are subject to curtailment when the flows are not met.   The system is not perfect, but it does provide a measure of protection against further degradation of rivers that lack sufficient water (such as the Spokane).

Ecology announced today that it will begin the formal rulemaking process, which should take about 18 months to complete, and will involve a fair amount of public process.

Spokane River 2003 low flows just above TJ Meenach Bridge

The purpose of instream flows is to protect public values in rivers.   For the Spokane, that means protecting water quality, fisheries, recreation, and scenic values.   An important question for Spokane River advocates to ask as this process unfolds:   Will the flows that Ecology proposes be sufficient to protect these values?

In a 2012 memo, and a 2013 presentation, Ecology stated that it intends to adopt a summertime flow of 850 cubic feet per second.  The Washington Department of Fish & Wildlife provided technical analysis.  But nowhere in the studies is there discussion of adequate flows for recreation and scenic values.   Alternative views about the amount of water that the Spokane River needs and other issues, submitted by the Center for Environmental Law & Policy, are set forth here.  (The back story is that the City of Spokane has proposed flows as low as 460 cfs, and Ecology believes it can split the baby).

Washington’s instream flow program got a big boost last October, when the state Supreme Court ruled that the Skagit River instream flow rule is designed to protect the river, and cannot be subordinated to water for future development.  (See Naiads post Skagit River Wins Big in Court (10-3-13)).

Despite the Skagit court decision, Ecology continues to issue new water rights that impinge on instream flows.   Litigation challenging Ecology is underway involving the Nisqually and Deschutes Rivers (issuance of new water right to City of Yelm, near Olympia), the Similkameen River (issuance of new water right for Enloe Dam, near Oroville), and the Columbia River (issuance of new water right to Kennewick Hospital, see Naiads post Washington Rivers: For Sale).

As the Spokane flow rule develops, those who care should closely question how this “water right for the river” will truly protect the river.

  • Will the flow rule really protect Spokane River water quality, fisheries, recreation, and scenic values?
  • Will the flow rule protect higher flows that occur some years, and provide important diversity in habitat and river channel maintenance?
  • Will the flow rule prevent issuance of future water rights to the detriment of the river?   (Of particular concern is the Department of Ecology’s obsession with obtaining new water for Columbia basin irrigation – the Spokane River is a potential source).
  • How will the Spokane River instream flow rule connect with new pumping on the Rathdrum Prairie in Idaho?

The coming year will present an important opportunity to advocate for the Spokane River.  Stay tuned.


Airplanes vs. Fish: Boeing Seeks Special Laws to Pollute

Biomagnification of Mercury up the Food Chain

Biomagnification of Mercury up the Food Chain
(National Park Service graphic)

What do the Spokane River and a Boeing 777 have in common?   A lot of toxic pollution, and that’s not a joke.

Washington Governor Jay Inslee just announced a special legislative session (starting Thursday, November 7) with the goal of keeping Boeing’s 777X airplane manufacturing business in Washington.  The governor wants a special package that will persuade Boeing from moving on to a friendlier tax and transportation state.Some of the package makes sense.  Investment in infrastructure to reduce Puget Sound freeway gridlock, workforce education, and tax incentives all connect to the goal. But the package also includes a “human health and water quality” element that will undermine proposed updates to water quality laws that are supposed to protect the health of the many Washingtonians who eat fish.

Notwithstanding the bureaucratese, the message is clear:  clean rivers are not as important as jobs.  Unfortunately, this formulation does not account for the benefits of clean water to the economy, and the costs to public health of toxic rivers.

WA DOH Statewide Fish Consumption Advisories Map (11-5-13)

Statewide Fish Consumption Advisories
(WA Dept of Health 11-5-13)

The problem in a nutshell:  Washington’s water quality laws are based on calculations of how much fish is safe to eat from polluted waters.  Many state rivers are polluted to the point that fish consumption is unhealthy.  For example, people who eat fish from the Columbia River and its tributaries (once home to some of the most abundant fisheries on earth) are now reading public health advisories posted at their long-time fishing spots.

The more fish you eat, the greater your toxic exposure.   This affects a lot of people in Washington, including Native Americans (who have dietary traditions going back thousands of years), along with a lot of non-tribal citizens who appreciate the abundance of our fresh and marine waters.   But, contrary to practical knowledge, the current standards assume people eat only 6.5 grams of fish per day, or about 8 ounces per month.

6.5 grams

From left to right, 6.5, 54, 157 and 250 grams of fish
(Photo: Heather Trim)

It’s an environmental justice issue, as Prof. Catherine O’Neill of Seattle University Law School documents in a recent blog post.  And, the current assumptions are just plain wrong.  Calculating water quality standards based on “just one fish meal per month grossly understates contemporary consumption rates.”

Given the inaccurate baseline for fish consumption quantities, the Department of Ecology began to update the standards a few years ago.   But along the way, Boeing, Inland Empire Paper (in Spokane) and other polluting industries demanded that Ecology slow or halt the revision process.   It is true that updated standards would impose stricter limits on the amount of pollution these industries are allowed to pipe into state rivers.   It is also a fact that the new standards would be based on what is needed to protect public health.

Boeing’s lobbying efforts succeeded – its intervention stalled the update process.   In March 2013, Seattle-based InvestigateWest published a riveting account of Boeing’s influence over the governor’s office:  “Boeing Interests Trump Health Concerns in Fish Consumption Fight.”

State efforts to dodge accountability are impressive.  Ecology convened a “stacked deck” advisory group, but environmental groups and Tribes boycotted.  Boeing went to the governor’s office, and got the delay it wanted.  Legislative skirmishes ensued in 2012 and 2013.  Public interest law firm Earthjustice filed suit on October 11, challenging the U.S. Environmental Protection Agency’s failure to step in when Washington failed to adopt standards that protect public health.

Janette Brimmer, Earthjustice attorney, puts it succintly:  “EPA’s inaction continues to allow polluters to discharge mercury, PCBs, lead and other toxins at levels that contaminate fish, pollute our waters, and threaten public health.  Everyone agrees Washington’s fish consumption rate and human health standards are under-protective. We can’t allow EPA to continue kicking the clean water can down the road.”

Ecology’s public information meetings continue to whitewash the problem.  If and when Ecology does adopt standards that protect public health, it has announced it will also adopt various loopholes that could allow polluters to delay compliance for decades.   At his press briefing, Gov. Inslee indicated that there would be no legislation on this issue, raising concerns that a backroom deal may have been struck.

Boeing Renton facility

Why does Boeing care about fish consumption rates to the point that this is part of Governor Inslee’s package?  According to Ecology’s permit website, Boeing holds more than a dozen pollution permits for its industrial facilities in Everett, Renton and Auburn.

These permits allow the company to discharge polluted stormwater into Puget Sound and air pollutants that inevitably return to earth.  Link here to view Boeing’s water pollution permits (type “Boeing” into the “Facility/Project” tab, then click on “search”).  And here for air pollution permits.

Apparently, airplane manufacturing causes a lot of pollution.  When it rains, that pollution runs off of Boeing’s industrial tarmacs and into Washington state waterways.

Native American leader Billy Frank Jr. sensibly suggests in his November Being Frank column that Boeing needs to join the larger community in a discussion about how to solve this Gordian knot.  “We don’t want Boeing to leave the state or go out of business. We want them to keep making planes here in western Washington, but at the same time we have to protect the health of everyone who lives here by adopting a more realistic fish consumption rate.”

So far, it’s “my way or the skyway” with Boeing planes pitted against clean water and healthy fish.  Unfortunately, I can’t serve a 777X at my dinner table.

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Washington Rivers: For Sale

For Sale: Washington’s rivers and streams
(map: Dept of Ecology)

Okanogan Wilderness League has filed an appeal of a new water right decision, challenging the Washington Department of Ecology’s authority to issue water rights from the Columbia River that are not conditioned on maintaining instream flows.  The appeal also challenges Ecology’s use of “out-of-kind” mitigation that allows the user to pay into a state fund for habitat restoration projects instead of curtailing pumping when river flows are too low.  The price?  $35.00 for every 325,000 gallons sold, er, pumped.

Link here for OWL’s press release regarding its appeal.

New water rights are hard to come by in Washington State.  Most of the state’s rivers and aquifers are over-allocated, particularly during summer months when water demand is high, but rivers are over-heated and lack adequate flows to support healthy fisheries.

These days, almost all new water rights involve purchase and transfer of existing rights, trust water rights, water banking, or other “water-for-water” offsets.   However, in February 2013, the Department of Ecology adopted a water right mitigation policy authorizing itself to issue new water rights based on “out-of-kind” mitigation – that is, a water user can restore habitat or simply pay money in order to get a new water right.

At first blush, habitat restoration is an appealing concept.  Why not restore a wetland, or stabilize a shoreline, or put some logs in a river if it helps aquatic habitat?  The problem is that water is irreplaceable – insufficient quantities of water in a river present a unique problem that usually cannot be fixed by restoring another part of the ecosystem.

The other problem is that would-be water users are very happy to pay into a fund to obtain a water right that will last forever.   Water, after all, is far more valuable than money.

On September 30, 2013, the Department of Ecology issued a large new water right to Kennewick Hospital, now known as Trios Health.  Trios was bequeathed property south of the Tri-Cities, on the Columbia River, and wants to convert it to irrigated land and sell it.  The buyer is Easterday Farms, a large corporate agricultural outfit.  (Easterday Farms is the vegetable growing arm of the family business that also runs Easterday Ranches, owner of massive cattle feedlots in eastern Washington.  More on them at a later date.)

New, unmitigated water rights cannot be had from the Columbia River.   New rights must be conditioned with instream flows or offset with water from another source.  Notwithstanding this rule (discussed in the 10-3-13 Naiads post re the Skagit River court decision), Ecology issued the new right requiring only that Trios pay $35 per acre foot per year into a state fund, up to a maximum of $6 million over a 40-year period in exchange for a water right that will last forever.   Ecology will use these funds to pay for about a dozen habitat restoration projects in the Yakima, Snake and Walla Walla River basins.

The Trios water right is the first unmitigated, non-interruptible water right to issue for Columbia River waters since salmon were listed under the Endangered Species Act.  Ecology claims that this is a unique situation and a rare use of the out-of-kind mitigation policy.  But at least two other recent, large water rights have been issued that rely on off-site habitat restoration as a basis for issuing the right (the City of Olympia/Lacey/Yelm water right package and the Okanogan PUD right for the Enloe dam project on the Similkameen River).

$35 per acre foot equates to $1.00 for every 9,300 gallons of water used.  The public’s water resources have not only been sold, but at a bargain basement rate.

It appears that Washington’s waterways are now officially for sale.


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