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


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Whatcom Water Insanity Part 1: Lynden Water Stealing & Milk as “Foreign Water”

WRIA 1 Map (Dept of Ecology)

Nooksack Watershed Map (Dept of Ecology)

This is a story, the first of many, about water resource issues in Whatcom County.  Whatcom County is well known as a place where a lot of people and farms and companies steal water.  One of the water thieves is the City of Lynden.

 

Bald Eagles

Bald eagles fishing for salmon in the Nooksack River (Photo Seattle Times)

By water thieves, we mean farms, dairies, cities and anyone else who takes water out of the Nooksack River (including tributaries and connected groundwater), without a water right.   This is wrong – it is stealing.  It hurts the river and its salmon and steelhead and the shellfish beds in the bay.  However, for decades, rather than bring enforcement action to halt water stealing in Whatcom County, the state agency in charge – the Department of Ecology – has hesitated, stumbled, apologized and pretty much done everything it can to avoid dealing with the problem.

With respect to Lynden, the city’s latest plan to stop stealing water is not to actually stop stealing, or to adopt aggressive water conservation, or to purchase and transfer existing rights, or any other water budget neutral solution.  No, instead Lynden wants credit for the wastewater that the Darigold powdered milk plant is already putting into the Nooksack River a mile downstream of the City’s water treatment plant.

The problem with this scheme, however, is that it too is illegal.

  • Darigold doesn’t own its wastewater, and can’t transfer it to the City.
  • The wastewater is already in the river so the “offset” is illusory.
  • Even if it weren’t illusory, there’s still a mile of river (and salmon habitat) that would be de-watered.
  • The wastewater from the Darigold plant is not “foreign water” (see below for more on the amazing concept that milk is foreign water).

Given all this illegality, Lynden is now asking the WA Legislature to make it all good.  And amazingly, the Legislature is complying.  Senate Bill 5298 sailed through the Senate, and was heard in the House Ag & Natural Resources Committee on March 24, 2015 – and could pass out of the committee and on to a floor vote sometime soon.

So, just to review.  A city that has been stealing water and harming flows in the Nooksack River has asked the Legislature to change the law to allow it to get credit for wastewater that is already being put into the River.  And the Legislature is prepared to do it.

So, why is water stealing such a big deal?

Nooksack River IRPP flows v fish flows

Redline – WA state’s take on flows to protect Nooksack River instream values Greenline – Flows actually need to protect instream values.

First, there’s the river.   In 1985, the Department of Ecology adopted an instream flow rule for the Nooksack River.   However, these instream flows were a compromise and not adequate to protect fisheries.  The graph at right shows what flows are needed (green line) versus what flows are protected under the law (red line).

Nooksack River percent days flows unmet (ECY 2015)

Fascinating graph showing how often the rule-based instream flows are not met throughout the year.

And that red line is not reality. The flows that are supposed to be protected in the instream flow rule are in fact often not achieved.  So water stealing by Lynden (and others) really does hurt the river and its fish.

Second, the Legislature is rewarding a scofflaw.  And this is really bad policy, because there are quite a lot of water thieves in Washington – in Whatcom County and elsewhere.  If the Leg gives in on this one, where does it end?

Third, is the “foreign water” concept – the idea that the mitigation water from the Darigold plant is adding new water to the Nooksack River.  In western water law “foreign water” means water that is imported from another watershed.

But here, the Department of Ecology has determined that Darigold wastewater is foreign because it comes from the cows.  In other words, the cows drink Nooksack River water, and they produce milk.  But once the milk comes out of the cow, it’s foreign water.

Once you’ve had a good laugh about that, feel free to call your legislator and ask that they stop rewarding water thieves, including the City of Lynden, and oppose SSB 5298.

More laughs and lots of good information about water and land use in Whatcom County can be found at Get Whatcom Planning.

 

 

 


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Federal Court Rules on Spokane River PCB Cleanup Plan: Evict Fox from Chicken Coop

The Spokane River has the worst PCB pollution of any river in Washington state.  On March 16, U.S. District Court Judge Barbara J. Rothstein ruled that the U.S. Environmental Protection Agency and Washington Department of Ecology have engaged in troublesome delay in studying and addressing the problem of Spokane River PCB pollution.

Of particular concern to the Court is the substitution of the “Spokane River Toxics Task Force” as an alternative to preparing a water quality cleanup plan (known as a Total Maximum Daily Load or TMDL) as explicitly required by the Clean Water Act.  The Court’s decision observes that the Task Force concept lacks metrics to determine “measurable progress,” lacks deadlines, indeed lacks any connection to creating a cleanup plan,and that there has been a “worrying lack of progress made with respect to scientific data” to determine where the PCBs are and how to clean them up.

What is this Spokane River Task Force?  It is a committee composed of Spokane River polluters* who have permits, issued by the Department of Ecology, that require them to participate in the Task Force rather than actually clean up the toxic pollution they discharge to the River.   The interlocal agreement establishing the Task Force commits the polluters (and a few third party hangers-on) to study the hell out of the Spokane River PCB problem.   Actual cleanup actions, however, are not required.

For example, the Task Force’s definition of “measurable progress” include “inputs” (attending meetings) and “outputs” (preparing reports, plans and studies).   Of course “outcomes” are also important – including reduction of toxics in the Spokane River – but there is nothing in the Task Force mission that requires the polluters themselves to reduce pollution.  Indeed, the very purpose of the Task Force is to allow the polluters to avoid responsibility for removing the toxics they discharge to the river.

The Court’s March 16 decision precisely nails the problem:

“The record indicates that the Spokane River has been on the 303(d) list since 1996 and after nearly 20 years still contains the worst PCB pollution in the state. Despite this known problem and Ecology’s prioritization of the Spokane River PCBs, a substantial percentage of the pollution sources remain unknown.”

“. . . it is significant that no effective limitations [on polluter permits] have been put in place by the Board and the only significant condition imposed by the Board has been that point polluters participate in the Task Force.”

“There comes a point at which continual delay of a prioritized TMDL and detours to illusory alternatives ripen into a constructive submission that no action will be taken. With the Task Force as presently proposed, Ecology is coming dangerously close to such a point, and with EPA’s support. Accordingly, the Court finds that the EPA acted contrary to law in finding the Task Force, as it is currently comprised and described, a suitable “alternative” to the TMDL.”

Strong stuff.   At its core, the Court recognizes that Spokane River polluters should not be in charge of deciding how much they are allowed to pollute.

Most importantly, the Court directs EPA and Ecology to come up with a PCB cleanup plan for the Spokane River in a reasonable time frame.   The agencies must report back to the Court within 120 days with:

“. . . a definite schedule with concrete goals, including: clear statements on how the Task Force will assist in creating a PCB TMDL in the Spokane River by reducing scientific uncertainty; quantifiable metrics to measure progress toward that goal; regular checkpoints at which Ecology and the EPA will evaluate progress; a reasonable end date, at which time Ecology will finalize and submit the TMDL for the EPA’s approval or disapproval; and firm commitments to reducing PCB production from known sources in the interim.”

After 20-plus years, a PCB cleanup plan is finally on the radar screen for the Spokane River.  Thanks is due not to the Department of Ecology or the Environmental Protection Agency, agencies that have failed to live up to their statutory duties (not to mention their very names), but to the checks and balances of our democratic system, and to a federal court that knows a fox when it sees one.

 

*Spokane River polluters in Washington include Liberty Lake Water & Sewer District Water Reclamation Facility (sewage treatment plant), Inland Empire Paper, Kaiser Aluminum, Spokane County Water Reclamation Facility (sewage treatment plant) and the City of Spokane’s Riverside Park Water Reclamation Facility (sewage treatment plant).  The use of euphemistic names for the sewage treatment plants is a common tactic used by municipal polluters to obscure public understanding of their activities.


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Grand Coulee Fish Passage Getting Attention

Salmon Chief Spokane Falls (Luke Wiley photo)The idea of salmon above Grand Coulee dam is getting a lot of attention these days, both artistic and scientific.  Naiads readers are encouraged take two actions:  (1) view the movie and (2) comment on the proposal.  Details below.

Naiads has previously reported on the intrepid Columbia River paddlers who traveled from Astoria, Oregon to Canal Flats, B.C. in the summer and fall of 2014.  They have just released a new film that examines the potential for salmon restoration through the lens of their journey.  The 35-minute movie, Treaty Talks: Paddling Up the Columbia River for People and Salmon, takes the viewer up the river and into the lives of the Spokane and Colville Tribes kids who carved the dugout canoes, along with many others who dream about and are dedicated to salmon restoration.

The Columbia Canoe Journey was undertaken by Voyages of Rediscovery, aka Adam Wicks-Arshack, Xander Demetrios, John Malik, and Jay Callahan.  It’s an inspiring and beautiful film.

The film was sponsored by Upper Columbia United Tribes or UCUT, a consortium of five tribes in the Upper Columbia basin that serves to protect and restore the natural resources of those tribes – covering 2 million acres and lands and waters located within the states of Washington and Idaho.

UCUT has been instrumental in promoting a serious policy discussion about salmon reintroduction above Grand Coulee dam.  See related posts on this blog discussing the Columbia River Treaty recommendations and other documents.

UCUT has now released for public comment the Phase 1 Plan for the Upper Columbia Basin Fish Passage and Reintroduction Project.  Comments on the plan are welcome and due to UCUT on February 27, 2015.   It’s a well-constructed plan that will

UCUT’s Phase 1 Plan follows on the NW Power & Conservation Council’s October 2014 adoption of the Columbia Basin Fish & Wildlife Program. The program plan calls for a phased approach to study and implement reintroduction of anadromous fish (salmon, steelhead, eels and other species) to areas where fish migrated historically, but which are now blocked due to dams and etc.

 

 


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Bambi in the Crosshairs

Deer in Park

Hunting in Washington state parks? You’re kidding, right?

The Washington Legislature will hold a hearing on Monday, January 26 on House Bill 1346, which would open Washington State Parks up to hunting.

This is a bad idea.  Washington state parks are havens for people and wildlife, providing important habitat and opportunities for passive wildlife enjoyment and nature recreation.

Beyond the recreational impact, Washington state parks are THE POSTER CHILD for agency budget cuts.  How the Parks & Rec Commission would be able to implement, regulate and protect public safety is a complete unknown.  HB 1356 has no fiscal note – apparently the proponents don’t understand the status of the agency’s cannibalized budget.

Readers are encouraged to comment to the House Committee on the Environment and their own state representatives.   The HB 1346 website has a link for easy submittal of comment.


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Part 4: New Diversions & Dams in the Alpine Lakes Wilderness?

Part 4:  The Alpine Lakes Automation-Storage Project

Enchantment Zone Icicle ID Instream Flow Options Report (7-25-14)

Alpine Lakes Wilderness region where automation and new storage is proposed.

This is the fourth of a four-part series regarding proposals to re-build a dam and increase water diversions from as many as seven lakes in the Enchantment Lakes region of the Alpine Lakes Wilderness.  Part 1 describes the genesis and functioning of the Icicle Work Group, the entity which is proposing the water projects. Part 2 examines the Eightmile Lake Restoration-storage project, and Part 3 examines the Upper Klonaqua Lake Pipeline proposal.

In a nutshell, the Department of Ecology’s Office of the Columbia River has funded Chelan County to investigate how to solve water problems in the Wenatchee River watershed.  The primary focus of the effort is to increase water storage and diversions from seven lakes in the Enchantment Lakes region of the Alpines Lakes Wilderness.

This article discusses the proposal to automate existing diversions from the Alpine Lakes to increase efficiency and potentially drain the lakes.

The IPID and Hatchery diversion methods are primitive:  drain holes and gates at the lakes are manually opened and closed at the beginning and end of the irrigation season by IPID and Hatchery staff who hike into the Wilderness.

Icicle Subbasin Vicinity Plan (Aspect Consulting Nov. 2012)

Icicle Creek Subbasin Vicinity Map (Aspect Consulting Nov. 2012). This map shows lakes proposed for storage and added diversions, and existing diversion points on Icicle Creek.

The Alpine Lakes Automation/Optimization Appraisal Study (A/O Study) evaluates the potential to install telemetry equipment at each of the seven lakes to allow IPID and the Hatchery to remotely control the water release structures from their offices.  Rather than uncontrolled drainage, automation would allow the water users to fine tune the quantities of water they remove from the lakes to meet both consumptive use and instream flow requirements.

The original concept for the study was to evaluate more efficient use of water and refill rates.

However, the scope of the A/O Study has expanded to include analysis of increasing storage at Snow and Eightmile Lakes.   The study evaluates increasing storage at Upper & Lower Snow Lakes by 5 feet and drawing down Lower Snow by an additional 3 feet.  The study also evaluates two options at Eightmile Lake.  The first involves rebuilding the dam to its original height (adding 4 feet to current pool); the second adds another 1 foot above that.  Both options also evaluate lowering the Eightmile Lake outlet by 19 to 22 feet below current drawdown levels.

The A/O Study then evaluates the water supply opportunities should six of the seven IPID/LNFH lakes be fully drained each year. (At present, IPID diverts from the four lakes to which it holds rights on a rotating basis.)

The proposals to install automation equipment, manipulate lake levels, and increase diversions from the lakes seem likely to require approvals from the U.S. Forest Service (which manages the Alpine Lakes Wilderness) and the Department of Ecology (which manages water rights).  To date neither agency has indicated their positions regarding these proposals, although as discussed in Part 1 of this series, Ecology’s Office of the Columbia River has provided substantial funding to study new dams and diversions from the Enchantment Lakes.

 


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Part 3: New Dams & Diversions in the Alpine Lakes Wilderness?

Part 3:  The Upper Klonaqua Lake Pipeline Proposal

Upper Klonaqua Lake (Aspect Nov. 2014)

Upper Klonaqua Lake (Aspect Consulting, Nov. 2014)

This is the third of a four-part series regarding proposals to re-build a dam and increase water diversions from as many as seven lakes in the Enchantment Lakes region of the Alpine Lakes Wilderness.  Part 1 describes the genesis and functioning of the Icicle Work Group, the entity which is proposing the water projects. Part 2 examines the Eightmile Lake Restoration-Storage project, and Part 4 examines the Alpine Lakes Automation-Storage project.

In a nutshell, the Department of Ecology’s Office of the Columbia River has funded Chelan County to investigate how to solve water problems in the Wenatchee River watershed.  The primary focus of the effort is to increase water storage and diversions from seven lakes in the Enchantment Lakes region of the Alpines Lakes Wilderness.

This article discusses the preliminary proposal to divert water out of Upper Klonaqua Lake.  The only study for this project released to date is the draft Bathymetry and Topographic Survey of Upper Klonaqua Lake and Conceptual Release Options (Aspect Consulting, Nov. 2014).

Topo map of Klonaqua Lakes

As with all of the Alpine Lakes proposals, the search is on for new water to supply downstream uses in the Icicle Creek and Wenatchee Valley.

The Upper Klonaqua Lake concept involves installing a siphon or pump or blasting a tunnel  from Lower Klonaqua into Upper Klonaqua Lake, draining it into Lower Klonaqua Lake, and then allocating that water for uses further down in the watershed.

 Upper-Klonaqua-Lake-Conceptual-Review Graphics (Nov. 2014)

Upper Klonaqua Lake Bathymetry Synopsis (Aspect Consulting, Nov. 2014) Draft

In September 2014, Gravity Consulting LLC conducted a study of the depth and contours of Upper Klonaqua Lake.

As discussed in Parts 1 and 2 of this series, the Icicle and Peshastin Irrigation Districts (IPID) hold some form of water rights and easements for several Alpine Lakes, including the Upper and Lower Klonaqua Lakes.  IPID has never accessed water from Upper Klonaqua, and according to the report, has used only 1,600 acre-feet of its 1926 2500 acre-foot water right from Lower Klonaqua Lake.

Nonetheless, the Upper Klonaqua Study evaluates the natural storage capacity of Upper Klonaqua, including how much water could be obtained by drawing down the lake.

Issues with this proposal include that any new water project in a wilderness area would require approval of the U.S. Forest Service (and, according to the Wilderness Act of 1964,  possibly the U.S. President).

And, because this proposal  would involve diverting increased quantities of water from the Klonaqua Lakes, the Department of Ecology would have to evaluate relinquishment, and issue new water rights to accomplish the goal.

To date, neither the Forest Service nor the Department of Ecology have expressed opinions about the viability of these proposals.


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Part 2: New Dams & Diversions in the Alpine Lakes Wilderness?

Part 2:  The Eightmile Lake Storage Proposal

This is the second of a four-part series regarding proposals to re-build a dam and increase water diversions from as many as seven lakes in the Enchantment Lakes region of the Alpine Lakes Wilderness.  Part 1 describes the genesis and functioning of the Icicle Work Group, the entity which is proposing the water projects. Part 3 examines the Upper Klonaqua Lake Pipeline proposal, and Part 4 examines the Alpine Lakes Automation-Storage project.

In a nutshell, the Department of Ecology’s Office of the Columbia River has funded Chelan County to investigate how to solve water problems in the Wenatchee River watershed.  The primary focus of the effort is to increase water storage and diversions from seven lakes in the Enchantment Lakes region of the Alpines Lakes Wilderness.

This article discusses the proposal to rebuild a dam at Eightmile Lake and make more water available for the City of Leavenworth and other downstream uses.

Eightmile Lake nonfunctioning dam Sept 15 2013 by Karl Forsgaard

Nonfunctional dam at Eightmile Lake in the Alpine Lakes Wilderness (Photo: Karl Forsgaard)

The Eightmile Lake Restoration-Storage proposal evaluates the ability to increase water storage in Eightmile Lake by increasing the pool level and/or drawing the lake down further.

The original dam and control works for the lake have collapsed and current usable capacity is 1,375 acre-feet of water.

The Eightmile Lake Restoration Draft Appraisal Study (Nov. 2014) evaluates four options for increasing storage capacity: 2,000, 2,500 (2 options), and 3,500 acre-feet.  All four options include re-building the dam to its original height, or higher, as well as drawing down Eightmile Lake pool below its current, semi-natural outlet.  The Eightmile Lake proposal is based on assumptions about water rights and easements held by the Icicle and Peshastin Irrigation Districts (IPID), which actively manage four of the Alpine Lakes to serve water to about 7,000 acres of orchards and converted lands in the Wenatchee Valley.

IPID holds water rights dating from 1926 that allow the district to store water in and divert from the lakes.  The Eightmile Lake water right was adjudicated in 1929 at 2500 acre-feet annual volume, and 25 cfs rate of diversion.   However, the Eightmile dam collapsed at some point in the past and IPID has not used the full (artificial) storage capacity for many years.  There are questions about relinquishment of water rights over and above what IPID needs and has used in the past.  At a minimum, the Department of Ecology would have to issue water rights for new and increased uses.

Eightmile Lake Easements (Aspect Nov. 2014)

Eightmile Lake easements held by IPID are shown in blue (Aspect Consulting, Nov. 2014)

IPID holds easements that allow it to “store” water in several of the Alpine Lakes, although the scope of the easement for Eightmile Lake does not cover the entire lake.  As described in a Review of Eight Mile Lake Storage Authority (Aspect Consulting, 3-5-14), IPID’s easements cover only  a portion of the lake.

Any increase in storage capacity would require, at a minimum, U.S. Forest Service approvals.  Section 4(d)(4) of the Wilderness Act of 1964 requires Presidential approval to establish and maintain reservoirs within wilderness areas.

The appraisal study hypothesizes that the easement language will allow and perhaps even require the Forest Service to approve an expansion of the reservoir:  “In performing maintenance, repair, operation, modification, upgrading and replacement of [Eightmile Lake] facilities, [IPID] will not without prior written consent of the Forest Service, which consent shall not unreasonably be withheld, materially increase the size or scope of the facilities.”

Min & Max Inundation for Option 2 (Aspect Nov. 2014)-2

Minimum and Maximum Inundation Levels for Eightmile Lake Restoration, Option 2 (Aspect Consulting, Nov. 2014)

The Eightmile Lake proposal raises questions about the scope of impacts on riparian zones and wilderness surrounding the lake, including trails, campsites and other public amenities.

Trout Unlimited has published a study evaluating increase in storage at Eightmile Lake to provide water to improve instream flows in Icicle Creek.  That study includes a brief review of impacts to campsites and trails around the lake.

Eightmile Lake is one of the most popular trails and destinations in the Icicle Creek region of the Alpine Lake Wilderness, partly because of its easy accessibility.  To date, however, the U.S. Forest Service has not provided a public position regarding proposals to expand or draw down Eightmile Lake.

 

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