Washington Water Watch 
April 2016

In This Issue
What's Upstream Campaign
Spokane River PCB Cleanup Not Adequate
Fox v. Skagit County Decision
GiveBIG to CELP!
Celebrate Water
Water In Your Backyard
On the Banks of the Wenatchee
Keep Our Rivers Flowing!
Help ensure clean and flowing waters in Washington State by making a gift to CELP!

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Upcoming Events
May 3 is Give BIG!
Support CELP on May 3rd, our community's biggest day of giving of the year. Learn more and support CELP 

May 12
Town Hall, 5:30 pm
A series of rapid-fire presentations by renowned experts from the field who will describe how this rich ecological system is coming back to life before our eyes after the removal of the Elwha dam.

June 8
Join CELP staff, board and supporters to celebrate CELP's accomplishments and honor Professor William H. Rodgers with the Ralph Johnson Water Hero Award.
Happy Earth Day!

Dear Friends of CELP, 

Happy Earth Day! I hope everybody celebrates by getting outside to experience Washington's amazing rivers and streams! We have all been enjoying this warm sunny weather, but it could impact our water resources. Washington's rivers and streams are in better shape than they were last year, but the forecasts for runoff levels between April
The Palouse River - photo by Julie Titone
and September
are declining due to rapid snow melt. It's a big wake-up call for things to come. Changes in weather patterns due to climate change are going to have a big impact on our waterways. Our current management systems for water are designed around past patterns of temperature and precipitation. Preparing for and adapting to the impacts of climate change will require new and innovative approaches.
That's why CELP continues to work for the sustainable management of Washington's water resources. But we can't do it alone; we need the support of Washington residents like you who understand that protecting our rivers and streams will help our endangered salmon recover and the people who depend on healthy salmon populations, and it will also help Washington's economy. 
In this issue we have an article on our What's Upstream Campaign, an update on the Spokane River PCB cleanup, our recent victory on the Fox decision, an article on water pollution mitigation in your own backyard, and more.
We can do this work because of the continued support from our loyal members like you. If you haven't renewed your membership for 2016, do it today by donating on our secure website, www.celp.org.
Best water wishes, 
Steamy stumps on the Elwha - photo by Julie Titone

Trish Rolfe
Executive Director

P.S. On this Earth Day do your part to conserve water. Visit Ecology's Conservation website here.

What's Upstream: a Case for Clean Water
By Trish Rolfe

Clean water is essential for our human health, and cold, clean water is essential to the health of our fish and shellfish. That's why in 1972, Congress passed the landmark Clean Water Act and set the goal of "fishable, swimmable, and drinkable" water for all of our nation's waterways. But, here in Washington we are far from that goal. Water pollution remains a significant problem, and a major obstacle to salmon and steelhead recovery in Puget Sound.   

According to the Environmental Protection Agency, "agricultural nonpoint source pollution was the leading source of water quality impacts on surveyed rivers and lakes, the second largest source of impairments to wetlands, and a major contributor to contamination of surveyed estuaries and ground water." Unfortunately, this is the case because the agriculture industry has been largely exempted from federal rules designed to achieve this goal, and our state has no permit system in place to regulate many agricultural practices.

A number of these unregulated agricultural practices (including spreading excess manure on land, which then runs off into streams), send harmful pollutants into our waterways, degrading our water, destroying vital habitat and endangering our fish. That's why CELP has joined with Northwest Indian Fisheries Commission, Swinomish Indian Tribal Community, Western Environmental Law Center, Puget Soundkeeper, Spokane Riverkeeper, and Friends of Toppenish Creek in an effort to educate Washingtonians about agricultural pollution of our waterways.

The Nooksack River in Whatcom County - photo by Julie Titone

The educational campaign includes a website, www.whatsupstream.com, and advertising directing people to the website. Recently, a controversy started with a sign on a Whatcom County bus that advertised the website. Transit officials took down the signs this month citing their policy prohibiting advertisements that advocate a position on a public issue. A farm group complained that the photo of cows in an unidentified creek misleads the public about Northwest farming practices.

The Washington Farm Bureau and a group called Save Family Farming are fueling this controversy by claiming that the EPA funded website is a misuse of funds (EPA denies this). CELP wholeheartedly rejects these claims. The website is primarily educational in nature, and furthers the EPA's mission to educate people about the environment and the Clean Water Act. It even offers solutions to control pollution.

Farming to the edge of our streams causes pesticides, fertilizers, and land-applied manure to enter into our waterways. This degrades our water, destroys vital habitat, and endangers our fish. Streamside buffers have helped other industries, such as timber harvesting and land development, dramatically reduce stream pollution. Planting buffers can help the agriculture industry do its part to protect our water resources, too. Requiring 100 feet of natural vegetation between farmland and our waterways would keep most pesticides, fertilizers, cows and manure out of our streams. Trees and other natural vegetation alongside our waterways would promote healthy habitat for salmon. These are simple steps that would have a dramatic impact on water quality. 

CELP's mission is to protect, preserve and restore Washington's waters, and we believe protecting them from water pollution should be a priority for everyone in Washington State including all our elected officials. Clean water is essential for public health and the health of fish and wildlife. 

Read the report here.
Spokane River Fish Advisory for PCBs
Federal Appeals Court: Spokane River PCB Cleanup is Not Adequate

by John Osborn

Advocates for the Spokane River hailed an April 5 decision by the federal Ninth Circuit Court of Appeals dismissing the appeal filed by Spokane County, Kaiser Aluminum Washington, LLC, and the State of Washington Department of Ecology (State Ecology). The Ninth Circuit decision lets stand the U.S. District Court's ruling that the U.S. Environmental Protection Agency (EPA) cannot substitute the Spokane River Regional Toxics Task Force, a polluter-dominated committee process, for a cleanup plan for Spokane River PCBs.
"The sewage and industrial treatment plants such as City of Spokane and Inland Empire Paper are moving forward with pollution control projects, but absent a cleanup plan, there is no target against which to measure success. After spending hundreds of millions of taxpayer dollars, these plans may not measure up," said Rachael Paschal Osborn of CELP and Sierra Club.
The Spokane River is heavily polluted with PCBs and other toxic chemicals. Despite years of analysis, Ecology and EPA have failed to prepare a cleanup plan for the River. State and EPA-issued pollution discharge permits for municipal and industrial treatment plants in Washington and Idaho do not contain numeric standards limiting the release of toxins into the Spokane River. The Washington Department of Ecology is due to renew those permits this year, but the agency is not expected to include numeric limits for toxics.

Court of Appeals Upholds Protections for Instream Flows and Fish

by Dan Von Seggern

On April 11, the Washington Court of Appeals issued an important published decision in Fox v. Skagit County that strongly reinforces protections for instream flows. Plaintiffs Richard and Marnie Fox had appealed the denial of a building permit based on water use from a permit-exempt well in the Skagit River basin, which is closed to new water appropriations.  The court rejected plaintiffs' arguments that permit-exempt wells were outside of the "first-in-time, first-in-right" system used in Washington and that ownership of land automatically carries the right to use groundwater. 

Skagit River - photo by Brian Walsh
Washington law provides an exemption from the formal water permitting process for wells which will be used for certain purposes, including a limited amount of water for domestic use. The exemption is from the permitting process only, and does not alter the requirements that water be legally available and that the proposed use must not impair more senior users. 
Because the Foxes' well would have impaired streamflows in the Skagit River, water use would have to be interrupted when the Skagit instream flow is not met (since 2005, there have been 5 years where the river fell below the minimum flow requirement for 100 days or more). Skagit County denied issuance of a building permit (as required by state law) because there was not an uninterruptible water supply available. 

The Foxes challenged the denial, arguing that permit-exempt wells were also exempt from the prior appropriations system and free of essentially all regulations. They also contended that ownership of land established the right to use water, regardless of whether water was legally available in the area or whether the rights of a senior user would be affected. These contentions are squarely in conflict with Washington law and the prior appropriations systems used to allocate water in most Western states. The Department of Ecology and the Swinomish Indian Tribal Community joined the lawsuit and opposed the Foxes' claims.
The Court of Appeals' strongly worded decision reaffirmed that permit-exempt wells may not impair more senior appropriations of water, citing the "long-standing rule that first in time shall be first in right." The Court also expressly stated that instream flows are water rights that take priority over later appropriations, including permit-exempt wells.  Finally, the Court held that any "riparian-like" or "correlative" rights to use water simply by virtue of land ownership were abolished by the 1917 Water Code and the 1945 Groundwater Code. 
Proliferation of permit-exempt wells has threatened both instream flows and more senior water users. The Fox decision sets a strong precedent that instream flows are to be protected and that permit-exempt wells are not to be used to avoid the prior appropriations system. This will help to protect both streamflows and the fish that depend on them.  

GiveBIG to CELP on May 3rd!  

The Seattle Foundation's 
GiveBIG day of community giving is on May 3rd! GiveBIG isone-day, online charitable giving event designed to raise money for local non-profits. By donating to CELP on May 3rd, your dollars will be stretched by an additional contribution from the Seattle Foundation and other event sponsors!
NEW THIS YEAR: Starting this year, you can make a scheduled gift before May3rd! Don't wait, give today!

Professor William Rodgers - photo from the University of Washington

Celebrate Water is coming up! Join us on June 8th for our annual fundraising event to celebrate CELP's successes in the past year and present Professor William H. Rodgers with the Ralph Johnson Award for his contributions to water resource issues and achievements in water law and policy. 
Meet CELP staff, board and supporters as we come together in support of Washington's waterways over dinner, drinks, and a beautiful view of Lake Union. Stay tuned for more information on a CLE that will precede the event!

Water in Your Backyard

by Elan Ebeling

Stormwater runoff is a big problem in Washington State. When rain falls in urban areas, it picks up pollutants like oil and toxic debris from streets, roofs, and other paved surfaces. With nothing to filter this rainwater, it drains directly into storm drains, polluting rivers and lakes. In the urban areas of our state, stormwater runoff is the largest source of water pollution, contributing to the destruction of salmon habitat and ecosystems, as well as causing dangerous flooding. Given the fact that Seattle just experienced its wettest winter in history, this issue is more relevant than ever.

Luckily, there is an easy way to become part of the solution, starting in your own backyard. In the past couple of years backyard rain gardens have been appearing all over the state prompted by a number of municipal education campaigns and programs dedicated to mitigating the effects of stormwater runoff. Rain gardens are shallow depressions of spongy soil mix and native plants that work to slow, absorb, and filter rainwater, keeping pollutants from draining into local waterways. According to an estimate from www.12000raingardens.org, the average home rain garden can naturally filter 30,000 gallons of water per year. 
Rain Garden diagram - Image from www.700milliongallons.org

As climate change intensifies and weather patterns become increasingly unpredictable, rain gardens could have an enormous impact on the pollution in waterways all over Washington State. What better way to celebrate this Earth Day than by getting outside and installing a rain garden?
A RainWise garden in Seattle - photo from www.ecoss.org
There are a number of incentive programs to encourage homeowners in Washington to build rain gardens on their property. The City of Seattle's RainWise program, for example, provides a rebate to homeowners in certain stormwater-heavy neighborhoods for installing rain gardens and water cisterns. Many cities in Western Washington including Tacoma, Bellingham, Shoreline, and Everett have followed suit with rebate programs of their own. 

For a full list of rain garden incentive programs in the Puget Sound area, click here
Check out these additional resources for homeowners around the state for installing rain gardens:

The Wenatchee River from the Vendetti family cabin
On the Banks of the Wenatchee

"My aunt and uncle own a cabin along a beautiful stretch of the Wenatchee River near Plain, Washington. Many family members have used the cabin as a city escape throughout the years. In the winters growing up we would spend our time playing in the snow and admiring the ice that formed along the banks, and in the summers we would grab some inner tubes and float through the gentle sections of the river. I have had amazing times along that river and I hope to be able to enjoy it for many years to come." - Submitted by Anthony Vendetti, Vancouver, WA

Do you have a river story you'd like to share with CELP? Please send story and photo submissions to [email protected]! 
Mother's Day is May 8th!

Support Washington's rivers this Mother's Day! Shop at
AmazonSmile.com and Amazon will donate 0.5% of the amount of your purchase to CELP.

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.