Washington Water Watch 
January 2018

In This Issue
WA Legislature Passes Flawed "Hirst Fix"
Hirst: The Bigger Picture
Leavenworth National Fish Hatchery Update
Keep Our Rivers Flowing!
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Upcoming Events
March 2, 6:30-9:30 pm
Winter Waters 2018
Patsy Clark Mansion 2208 W 2nd Ave
Spokane, WA 99201

Join CELP and the Sierra Club's Upper Columbia River Group to honor Rich Landers, Julie Titone and Karen Dorn Steele for their contributions to protecting and restoring the waters of the Upper Columbia River through fact-based journalism.

Learn more about the event and registration  here.

April 11, 8 am - 5 pm
One River, Ethics Matter
University of Montana in Missoula

As Canada and the United States prepare to negotiate and update the Columbia River Treaty, the " One River, Ethics Matter " conference series focuses on the Basin's dam-building era, consequences for rivers in western Montana, and opportunities to protect these waters in a time of climate change.

This event is free and open to the public. Learn more.

June 14, 2018
CELP's Celebrate Water 2018 at 
Ivar's Salmon House

Save the date for CELP's annual fundraiser! Stay tuned for more details.
A New Year Means New Challenges for CELP

Dear Friends of CELP,
Green River | Photo by Trish Rolfe.
The new year is upon us, and with that new challenges to protecting Washington's waters. The Legislative Session is in full swing, and CELP has been in Olympia promoting sustainable water use, and fighting bills that would harm our rivers and streams, and the fish and wildlife that rely on them.
To CELP's dismay the Washington's Legislature passed legislation, ESSB 6091, that undoes the effects of the Washington Supreme Court's Hirst decision which will impact flows in many rivers and streams in our state that are already overallocated. It does this by allowing permit-exempt wells to be drilled in many areas of the state without making sure there is legal water available first. This is bad for fish, tribes and senior water rights holders. Rural Legislators have held up the state's Capital Budget to get this legislation passed, stopping vital projects all around the state. We are glad that the Capital Budget has passed, but we expected more from our elected officials.
This will have far reaching consequences as climate change impacts are felt around the state. The bill does set aside money for projects to be done around the state to help restore stream flows in critical watersheds, but the process may have unintended consequences. CELP will need to be there to make sure that Ecology and the watershed committees approve projects that help stream flows and fish. But we can't do it alone, CELP relies on support from our members to hold the administration accountable, and take legal action when needed. You can renew your membership today on our secure website
In this issue, you'll find an update on this and other water legislation, including an in-depth article on the real impact of permit exempt wells, an update on the Leavenworth Hatchery case, the save the date for Winter Waters Event in March, and more. 

Trish Rolfe
Executive Director

P.S. Help us face these challenges head on and work to ensure healthy flowing rivers in Washington State for generations to come. Make your donation today!

WA State Legislature Passes Flawed "Hirst Fix"

by Dan Von Seggern

Skagit River | Brian Walsh
Our state legislature began this year's session by passing a bill to remove the 2016 Whatcom County v. Western Washington Growth Management Hearings Board ("Hirst") decision's protections for groundwater and streamflows. Hirst reaffirmed existing law and required that counties ensure water is both physically and legally available before granting building permits. This common-sense rule provided a critical check on withdrawals of groundwater that affect streams and rivers, and harm fish habitat.  Unrestricted groundwater withdrawals can impair the rights of senior water holders, including users of existing wells who are now seeing their wells go dry.  Worse yet, the bill takes a step towards reversing the Foster v. Ecology decision, which requires that impacts to streams be mitigated with replacement water, rather than with non-water ("out-of-kind") habitat restoration projects.

Concerned that having to show that water was actually available could slow development in rural areas, counties, the building industry, and property rights groups pressured the Legislature to find a "fix." On January 18, the Legislature passed a bill (ESSB 6091 ) that allows counties to approve building permits that rely on permit-exempt wells.

The bill authorizes a list of pilot projects that appear intended to demonstrate out-of-time, out-of -place, or out-of-kind mitigation. CELP is concerned that this provision is designed to reach a pre-ordained conclusion that out-of-kind mitigation is acceptable, and to pave the way for its broader use.  The consequences to Washington's rivers and the fish that depend on them may be disastrous.

Hirst: The Bigger Picture
by Rachael Paschal Osborn

Water law is in the news with the infamous "Hirst" decision being used to blockade the state capital budget. To understand how this roaring mouse could hold  up a billion-dollar budget, several myths  need dispelling. The bottom line is that proliferating wells are harming Washington's public resources, especially aquatic habitat.

First, a quick explanation of water law. Under state law, every drop of  w ater belongs to t he state, unless owned by the Tribes. To use water you must obtain a permit, called a water
Water wells per 40 acres, 1970 vs 2010. | Source: Department of Ecology 
right from the Department of Ecology. The major exception is for permit-exempt wells,i.e., wells that supply rural homes and businesses. The exception states that parties may use 5000 gallons per day of groundwater for household or commercial use, plus water for a half-acre of lawn or garden, plus water for livestock.  [...]

The Hirst decision brings Washington water management into the 21st century. Rather than tear it down, the State Legislature should use this opportunity to fix problems such as unlimited water use for animal feedlots and lack of regulations to protect flows in all of Washington's rivers.

Leavenworth National Fish Hatchery Update

Leavenworth | Nikki Morrison
by Dan Von Seggern

CELP's efforts to ensure that the Leavenworth National Fish Hatchery complies with water quality laws continue.  As Water Watch readers know, we recently prevailed in our lawsuit against the Hatchery for Clean Water Act violations. The major issue was that the Hatchery had not had a National Pollutant Discharge Elimination System permit since 1979. 

As that litigation was wrapping up, EPA issued a draft discharge permit. As part of the permitting process, the Washington Department of Ecology issues a certification under Section 401 of the CWA that there is a reasonable assurance of compliance with all applicable state laws (a "401 Cert").

Ecology's draft 401 Cert was issued on July 21, 2017, and failed to address issues including fish passage and  instream flows required to preserve aquatic life and instream values, both requirements of state law.  The November 22 Final 401 Cert also fell short in these respects.  A 401 Cert is appealed to the Pollution Control Hearings Board.  Along with co-appellant Wild Fish Conservancy, we filed our appeal of the 401 Cert on December 21 of last year.  CELP and WFC are represented in this matter by Brian Knutsen of Kampmeier & Knutsen, PLLC.

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 .