Dumping On The Falls

Avista begins dredging the Monroe Street dam, drawing protests from the Sierra Club and the Center for Justice.

Avista Corporation began dredging operations at its Monroe Street dam this morning, drawing protests from the Sierra Club and the Center. The operation involves scooping sediments from the upstream side of the dam’s spillway and pouring them onto the water and rocks immediately below the dam. Because of the well-documented contamination of Spokane River sediments, the Sierra Club objects to the dredging operation absent a rigorous sampling and monitoring effort to ensure significant levels of toxic materials are not resuspended in the river.

“Dumping untreated sediment into the river effectively re-suspends all the toxic materials and allows them to re-contaminate the river, said Rachael Paschal Osborn, Spokane River Project Coordinator for Sierra Club. “This practice is barbaric.”

Paschal Osborn notes that the dredge spoils are being unloosed less than a mile upstream of a prime redband trout spawning area in the vicinity of Peaceful Valley.

“There is a profound lack of government oversight for Avista’s dredging activities. The agencies are letting down the Spokane River and its aquatic life,” said Center for Justice attorney Bonne Beavers.

While Avista has received permits from the Corps of Engineers and Department of Fish & Wildlife, those permits contain very few conditions to protect the river. The Department of Ecology has waived its authority to regulate the dredge and fill operation until 2017.

The Sierra Club, which is represented by the Center on Spokane River issues, has filed an appeal of the state permit for dam relicensing, alleging that the practice of dredging violates water quality standards intended to control toxic substances in the Spokane River. That appeal will go to hearing in April 2009.

The Spokane River is among the state’s most contaminated river, with PCBs, toxic mine waste, and PBDEs (flame retardant chemicals). The severe pollution problems were part of the reason the Spokane River was listed as the 6th most endangered river in the United States in 2004.

“Before dredging,” Beavers contends, “Avista must obtain a Hydraulic Project Approval or HPA from Washington’s Department of Fish and Wildlife (DFW). Given that the river has known toxins in sediments upstream of the dam, it is reasonable to assume that the dredging could re-suspend these toxins when the fill is dumped below the dam. In order to determine potential adverse effects on aquatic life from the project, the current HPS required Avista to develop a long-term monitoring plan by March 1, 2008 for implementation during the 2008 dredging. The purpose of the plan was to gather information on the impacts of dredging and placing the fill back in the river. According to DFW, however, Avista failed to tender this plan.”

Avista must also obtain a permit from the Army Corps of Engineers prior to dredging. These permits are issued for five years. The Department of Ecology has the authority to evaluate the project and require changes in the permit necessary to ensure that state water quality standards are not being violated. Unfortunately, Beavers notes, Ecology waived oversight and on July 13, 2007, the Army Corps extended Avista’s permit another ten years – to 2017. Consequently, she says, without the DFW’s monitoring plan, there is no regulatory oversight ensuring that Avista’s dredging is not adversely affecting aquatic life downstream.

According to Avista spokesman Hugh Imhoff, the dredging operation is slated to continue until August 21st. Imhoff said the company doesn’t believe the word “dredging” is the right description for the process, which the company described in media message information as a “maintenance procedure” and “rock removal.”

The media message points noted that the “maintenance procedure” has been conducted for more than twenty years and the company “has operated in compliance with all the necessary and appropriate permits.”

The message points also includes the following: “The Washington Department of Fish and Wildlife has requested that Avista return the material to the river, immediately downstream of the dam. The material would naturally be carried downstream without the dam’s presence and may help provide spawning areas for the fish.”

Imhoff also provided us with a statement released by Madonna Luers, the public information officer for WDFW.

“The placement directly below the dam of the material allows the river to eventually transport and disperse this material in the reach below the dam and potentially augment spawning material available to fish,” she wrote. “Regarding potential toxics: This question is better answered by the Department of Ecology, which has water quality jurisdiction.”

Updated August 7th

Cleaning It Up

Sierra Club, working with Center for Justice attorneys, agrees to settlement with City of Spokane that avoids Clean Water Act lawsuit over direct sewage discharges to the Spokane River.

People who use the Spokane River and Latah Creek for swimming, fishing, and other aquatic activities will be better protected under a settlement agreement unanimously approved Monday night by the Spokane City Council.

The agreement was negotiated between city representatives and Center for Justice lawyers working on behalf of Sierra Club. It avoids a lawsuit that would have been brought by Sierra Club against the City under the federal Clean Water Act regarding repeated illegal discharges of raw/untreated sewage to the Spokane River and Latah Creek. The discharges were primarily caused by structural problems with Spokane’s antiquated stormwater management system. The notice to file the federal lawsuit was entered two years ago after a particularly egregious dry weather overflow event that contaminated the river just downstream of the T.J. Meenach Bridge.

“The city should be roundly congratulated for doing the right thing–upgrading its pipes to eliminate raw sewage overflows the the Spokane River,” says Rachael Paschal Osborn, Sierra Club’s Spokane River project coordinator. “The city’s commitment made it possible to settle without going to court.”

“This step will effectively eliminate sewage overflows to the Spokane River during dry weather periods,” Paschal Osborn told the city council Monday night, “and significantly reduce them during wet weather periods.”

As Paschal Osborn explained Monday night, although the settlement is geared toward preventing future illegal discharges of raw sewage during dry weather, the steps covered by the accord should also better protect the river from untreated discharges that occur when wet weather stormwater discharges overwhelm the city’s “combined sewers.” The city has been working since the 1980s to revamp The agreement should end dangerous dry weather raw sewage discharges like this one downstream of the T.J. Meenach bridge.its sewage collection system which still includes hundreds of miles of the so-called “combined sewers.”

The Washington Department of Ecology, which has fined the city for dry weather sewage discharges in the past, set a 2017 timeline for improvements to the city’s combined sewage overflow (CSO) holding facilities. A key to Sierra Club’s decision to settle rather than litigate, said Paschal Osborn, was the city’s agreement to expedite completion of the CSO upgrades well in advance of the 2017 timeline set by Ecology.

“The city knew it was violating the Clean Water Act, but didn’t seem to know how to fix its system system,” said Center for Justice Chief Catalyst Breean Beggs. “The Department of Ecology seemed content to wait for years to require a solution. The Center for Justice hired a waste water engineer, who came up with some affordable solutions, which we were happy to share with the city. To the city’s credit, it agreed to the solutions and avoided hundreds of thousands of dollars in fines and legal fees. Aside from the most important fact that our client likes this agreement, one of the things we like about it is that we’ve contributed to crafting a good solution we can begin implementing right away.”

Under terms of the settlement, the city agrees to make a number of management improvements in the inspection, maintenance, and response to reported overflow events that can lead to raw sewage discharges to the river.

Among the stipulations in the settlement, the city agrees to:

•Enhance public education and public notification of future CSO overflow events to better protect public health and expedite City crew response to overflow events.

•Upgrade eleven combined sewer overflow (CSO) weirs between now and the end of 2010 and evaluate additional modifications based on monitoring data.

•Use closed circuit television and other diagnostic tools to improve the frequency and effectiveness of system maintenance to prevent clogging that can result in river discharges.

•Improve training of City personnel who perform maintenance on the CSO system and modify some maintenance practices.

•Upgrade alarms on CSO facility monitors.

•Increase visual and data inspections of each CSO facility.

In exchange, the Sierra Club agrees not to file suite over any of the allegedly illegal discharges that have occurred to date. However, the Sierra Club is not barred from taking legal action in response to events that occur after the agreement is signed.

The settlement agreement comes four years after Spokesman-Review reporter Karen Dorn Steele authored a startling overview and investigative report on the city’s continuing problems with raw sewage discharges into the river. Based on her review of city reports to the Washington Department of Ecology, Dorn-Steele reported that, despite continuing upgrades to the system, the city continued to discharge millions of gallons of mixed stormwater and raw sewage into both the Spokane River and Latah Creek. The City’s press release on the settlement is available here.

Posted July 14th

Update, 7/16/08 : Read the Spokesman-Review’s editorial on the settlement, “Money well spent.”

Same Dam Problems

Sierra Club & CELP Will Appeal Ecology’s Avista-Friendly Remedy for the Spokane River

If Washington officials needed an example for how to actually do something to address the serious environmental problems caused by Avista Corporation’s dams on the Spokane River, says Center for Justice attorney Rick Eichstaedt, they didn’t have to look very far.

Spokane River native red band trout

Two hundred miles almost directly south of Avista’s Spokane headquarters is the Brownlee dam on the Snake River.

Brownlee dam shares something in common with Avista’s Spokane River dams, and especially Long Lake Dam. It creates a slack water reservoir in the Snake that is prone to serious dissolved oxygen deficiencies for the same reasons Long Lake (now known as Lake Spokane) has historically been plagued by algae blooms. Nutrients, principally phosphorus from sewage treatment plants and other sources, flow into the reservoir where the sluggish water warms and stratifies. As has been the case in the Brownlee reservoir, the nutrient-fueled algae blooms at Lake Spokane cause chronic declines in dissolved oxygen that make the lake perilous to fish and other aquatic life.

The federal Clean Water Act requires that such serious environmental problems be rectified with measures that, by law, will provide “reasonable assurance” that the water quality violations will be eliminated. At least in that respect, Avista and Idacorp (formerly Idaho Power Company), the operator of Brownlee dam, have been on very similar tracks. Both companies operate dams on waterways that have been listed as out of compliance with water quality standards, and both companies have been compelled to submit themselves to regulatory processes that, by law, should result in enforceable plans to solve the problems caused by their dams.

Today the operators of the Brownlee dam on the Snake River have a precise target for dissolved oxygen they are required to meet, CFJ’s Rick Eichstaedt notes. Avista’s Long Lake Dam, the main cause of the Spokane River dissolved oxygen problem, still does not. This, even though the Avista dam’s contribution to the problem has been documented and studied since 1972, before Eichstaedt was even born.

Not only are both rivers subject to water quality compliance processes (so-called TMDLs) under the Clean Water Act. But both power companies are seeking to have their dams relicensed by the Federal Energy Regulatory Commission (FERC). Under federal law, states have the power to enforceLong Lake dam, the primary cause of the Lake Spokane dissolved oxygen problem their water quality standards as part of the FERC relicensing process–a process that only occurs once every thirty to fifty years. Thus, states have a very powerful, once-in-a-lifetime tool to leverage the FERC relicensing process to protect and restore the environmental and aesthetic qualities of their waterways.

To be sure, says Eichstaedt, there is room for argument about what the best remedies are for dealing with complex water quality problems, such as those that afflict both the Spokane and the Snake. But these are largely arguments about methods. Where Eichstaedt thinks the Washington Department of Ecology has “dropped the ball” in managing the much-needed environmental rescue of the Spokane River is in the area of securing commitments from Avista for results that Ecology should have demanded with the power given the state during the dam relicensing process.

And this is why he brings up the Brownlee example. Today Idacorp has a dissolved oxygen requirement from Oregon and Idaho regulators that the Idaho utility must meet to come into compliance at the Brownlee reservoir.

Avista Corporation does not.

Despite the fact that Washington state scientists have known and documented since “before I was born” that Avista’s dams are the primary cause of the Spokane River’s dissolved oxygen problems, Eichstaedt says, the utility still manages to elude meaningful, binding regulationBrownlee dam on the Snake River, same problems, but a binding requirement of its dams by the State of Washington.

As important an example as the lack of a dissolved oxygen requirement is, Eichstaedt and the environmental groups he represents, have many other examples. They’ve laid them out in a notice of appeal filed a few days ago with the Washington state Pollution Control Hearings Board.

The appeal to the PCHB challenges Ecology’s June 10th certification that Avista’s four dams will operate in compliance with federal and state environmental rules, as those operations have been described by Avista. Ecology’s certification is known as a 401 Certification, in reference to the section of the federal Clean Water Act that requires applicants for federal licenses to apply for state review and sign-off.

“I think it’s fair to say that this is about the worst one of these [401 certifications] I’ve seen,” says Rachael Paschal Osborn. Paschal Osborn guides the efforts of both the Center’s clients–the Sierra Club’s Upper Columbia River Group and the Center for Environmental Law and Policy (CELP)–on Spokane River issues. She is one of the region’s foremost experts and students on water laws and is genuinely baffled by how toothless Ecology’s proposed certification of Avista’s dams is compared to others she’s examined and been involved with.

“If the state would just stand up and use the tool [the certification process], they could solve the water problems that plague the river,” Paschal Osborn says, “including the dissolved oxygen problem.”

In addition to the dissolved oxygen problem, these are some of the other issuesNine Mile Falls dam that the appeal will focus on:

•Despite the fact that heavy metals, polychlorinated biphenyls (PCBs) and other toxic substances are known to have made their way into the Spokane River, Ecology’s ruling will allow periodic dredging of the sediments in front of the Monroe Street dam, with the sediments being discharged back to the river (on the downstream side of the dam) without consideration of the sample results of what is in the sediments.

•Not only have the Avista dams fragmented the river’s native redband trout fishery, but the dams control the volume of water flow (known as instream flow) that is crucial to the health of both redband trout and whitefish. Although both Ecology and the state’s Department of Fish & Wildlife agree that a minimum flow of 850 cubic feet per second is needed to protect fish downstream of the Monroe Street dam, Ecology balks at actually requiring Avista to provide the minimum flow.

•Despite the fact that Ecology has extensively studied the river and the Avista dams effects on river health for more than thirty-five years (and has taken two years, instead of the typical one year, to review Avista’s proposed plan) Ecology’s ruling “defers a significant amount of assessment, plans, and studies and development of mitigation measures until after the issuance of the license by FERC. Over 35 actions, including 20 plans, will occur after the issuance of the license and outside the scope of public review and comment.”

It is this part of Ecology’s “certification” that leaves Eichstaedt shaking his head. While people rightly expect that Ecology’s certification of Avista should be tantamount to the process and consequences of having your car exhaust “certified” prior to obtaining a registration to drive the vehicle, that’s not nearly the case here.

“If you go into those [auto air emissions] check stations and you need additional work,” Eichstaedt points out, “you have to come back. You don’t get your certificate until your exhaust is meeting the standards. But the opposite is happening here. And to a large extent, using this analogy, Ecology’s not even putting the probe into Avista’s exhaust pipe. Ecology’s saying, ‘we don’t know, you figure it out, and then let us know and maybe we’ll come up with some mitigation measures.'”

•For what appears to be a purely arbitrary decision by Avista to make more money running water through its Monroe Street powerhouse, Ecology would continue to let the company continue to divert water away from the river’s downtown north channel for several hours a day. And then, Newspaper cartoon from 1914 about the plundering of the Spokane Fallswhen the water is turned on, Avista’s state certified plan would limit to a mere 350 cubic feet per second the amount of water in the north channel during late summer and fall.

It is the state’s sign-off on this continued aesthetic blight in the heart of Spokane that Paschal Osborn thinks is so demoralizing in terms of what it shows about Ecology’s unwillingness to buck Avista for such a clear and compelling public benefit.

“It’s a deeply cynicism-inducing process,” she said. “For Pete’s sake it’s so obvious and it’s such a pittance of water in power production terms. What City has a waterfall like this?”

Paschal Osborn says she is truly mystified by why Ecology seems to have wasted a once in a lifetime opportunity, at a time when there is so much obvious public support for restoring the river.

“So, if you’re asking me why Ecology failed to use this [certification] tool to solve the problems of the Spokane River, I don’t know. It’s hard to fathom.”

To that mystery Paschal Osborn shares what, in her experience with Washington’s leaders and the law, is a remarkable backstory. It’s a chapter of state and national history that would lead one to have expected that Washington’s long-awaited opportunity to reign-in Avista would have gone quite differently than it is going thus far.

The fifteen year old case is known by several names, but in the annals of the U.S. Supreme Court it was argued and decided as PUD No. 1 of Jefferson County v. Washington Department of Ecology. It is a landmark national environmental case because of how the state’s lawyers successfully argued it. They used Section 401 of the federal Clean Water Act to protect what, in both biological and spiritual terms, is the living symbol of healthy rivers in the Pacific Northwest, the presence of salmon and salmonid fish (trout and steelhead).

The case arose during the FERC licensing of the proposed Elkhorn dam on the Dosewallips River, which has viable populations of steelhead and coho and chinook salmon. Although the Department of Ecology didn’t reject the dam, it used its Section 401 certification powers to insist that the dam provide a baseline amount of water flow to protect fish in the “bypass reach” of the river. (The plan to build the dam was eventually scrapped.)

The City of Tacoma and the Jefferson County PUD #1 fought Ecology’s decision, arguing all the way to the U.S. Supreme Court that the 401 certification could apply only toWhat city has a waterfall like this?--Rachael Paschal Osborn water quality conditions, that the state had no business or authority to dictate water flows.

In a 7 to 2 opinion authored by Sandra Day O’Connor and announced in May of 1994, the U.S. Supreme Court upheld Ecology, and firmly established that the regulation of water flows as part of the Section 401certification process was a right that the states could exercise to protect fish and other natural resources. The ruling clearly gave Washington (and all other states) much broader powers to regulate federally licensed facilities that impede or otherwise alter state waters. It was, in short, a historic coup–winning a strong U.S. Supreme Court decision with an argument that had even failed on its first administrative appeal in Washington.

Paschal Osborn points out that the youthful assistant attorney general widely heralded as the architect for the Elkhorn dam challenge was Jay Manning. Manning is now the Director of the Washington Department of Ecology. Manning was the state’s lead attorney on the case until it reached the nation’s highest court. At that point, he handed the case off for oral argument to Washington’s then-Attorney General. Her name is Christine Gregoire. She is now Governor Gregoire. Gregoire’s oral argument in the case can be heard here.

It was a remarkable win, Paschal Osborn remembers, but now it raises a poignant question, given how casually Ecology bent to Avista’s wishes about stream flow and the other problems that have come up with the Spokane River dams certification.

“Now they have the power to use the tool that they [Manning and Gregoire] invented,” she says. “They haven’t done so. And this just isn’t any place. It’s the Spokane Falls.”

Posted July 7th

Two Eggs, Orange Juice, And A Dry Riverbed

Ecology’s landmark decision on Avista dams punts on the river’s problems and leaves Spokane’s signature waterfalls retreating to a bare trickle on summer mornings.

As regulatory testimony goes, it doesn’t get any more eloquent than the letter that Spokane’s ardent water guardian Rachael Paschal Osborn sent to the Washington Department of Ecology last month.

“The beauty of Spokane’s waterfalls has been recognized since its very beginnings,” River gorge near downtown power plantshe wrote in a passage crediting the research of historian J. William T. Youngs.

“On the morning of May 12, 1873, James Glover, the founder of Spokane, awoke on the dirt floor of a roofless log cabin where he had just spent his first night in Spokane. As he rolled out of his blankets, he told himself, ‘I am going to see the falls.’ He was soon sitting on ‘a great rock’ overlooking the Spokane River. Glover later wrote, ‘I gave myself completely over to admiration and wonder at the beautiful, clear stream that was pouring into the kettle and over the falls.’ He was so engrossed that he let himself be soaked by the spray: ‘I sat there, unconscious of anything but the river, gazing and wondering and admiring.'”

Paschal Osborn was hardly alone in appealing to the deeper reaches of the soul in beseeching Ecology to give more water to fish and people than to eastern Washington’s ancestral utility. The agency received a flood of comments asking it to require Avista to divert an ample amount of water away from its downtown hydroelectric plant to the upper falls.

But it didn’t work. When Ecology sent out its “Good News re. our River” press release at three minutes before noon Tuesday, the deal was done. Avista would be set for long-term relicensing at its four Spokane River dams, with pretty much business as usual. If Avista seemed like a powerful company on Monday, tomorrow it will seem omnipotent.

It wasn’t just the signature falls. Despite the undisputed fact that municipal utility rate payers and private companies face the burden of millions of dollars to upgrade waste water treatment plants along the Spokane River, the company whose dams are largely responsible for the river’s fiendishly difficult dissolved oxygen problem gets what, at worst, is the assignment of kicking its share of the problem down the road.

“Notwithstanding Ecology’s spin on today’s decision,” said Center for Justice attorney Rick Eichstaedt, “all of the concerns we raised in our comments to the agency remain.”

As much as from Ecology’s verdict, the dismay river advocates felt Tuesday afternoon was darkened further by the knowledge that this decision, at this point in time, was a rare opportunity to make dramatic changes to restore the river’s aquatic and aesthetic good health. In the lifelessly dry terms of the process, this was the “401 certification”–the once every three to five decades opportunity under the federal Clean Water Act for states to require water quality remedies to hydroelectric plants within their borders. Countless hours and literally hundreds pages of public testimony. Very little to show for it.

“My main disappointment,” said CFJ attorney Bonne Beavers, “was that Ecology failed to use its extraordinary powers to require Avista to operate its dams so that they do not impair our waters. If Ecology refuses to certify that the dam operation complies with our water quality standards, Avista doesn’t get the license. These licenses last from 35 to 50 years. This was our only chance to comment. We know that Avista contributes to low dissolved oxygen. But for the dams, the problem would not exist.”

Outside of boating and fishing enthusiasts, and those who live along Long Lake, few people are in a position to notice how the Avista dams on the river effect water quality.

That’s not true of the upper falls in downtown Spokane, however.

Ecology, in its press release, announced the decision this way:

“Another goal of the 401 Certification is to achieve the flows that residents and visitors want to see. The document contains aesthetic flow requirements. Under the permit, downtown visitors and local residents will see more water flowing through the North Channel, which is currently dry for much of the summer. The increase would take place at 10 a.m. until 30 minutes after sunset.”

Minimum flows (meaning between 10 a.m. and dusk) would increase, Ecology noted, by “approximately 300 cubic feet per second.”

It was clearly the hope of the CFJ clients–the Sierra Club’s Upper Columbia River Group and Paschal Osborn’s Center for Environmental Law & Policy (CELP)–that the wind of public opinion was in their sails on this one. As she noted on the first page of her comments on behalf of both groups, even a study done in support of lower flows found study participants favoring higher flows.

“Moreover,” she wrote, “the economic impact of requiring high waterfall flows is insignificant compared to Avista’s power generation capability and cost to consumers.”The upper falls, with water

In her comments Paschal Osborn requested a minimum of 500 cubic feet per second at the upper falls, “from 5 a.m. to midnight.”

By comparison, Ecology’s fateful decision is more than a glass half empty.

“Think of it,” Eichstaedt says, “you live here or you’re in town from Topeka and you want to have a morning jog through the park or breakfast overlooking the north channel, or maybe you’re simply biking to work. What we’re offering you is a nice view of basalt where the river is supposed to be. Ecology and Avista have sold us and the river short.”

Beavers, in recent years, has worked as hard as anyone on the river’s dissolved oxygen problem on behalf of the Center’s river clients. Tuesday’s decision left her shaking her head about a lost opportunity, and a big one at that.

” As in other states,” she said, “Avista could have been given a requirement to increase dissolved oxygen levels either by aeration or other practices, or perhaps by contributing to the reduction efforts of river dischargers. Instead, Avista gets to ‘study’ the problem, which it has been doing for the past four years or more, and then come up with a plan in two years. The public does not get an opportunity to comment on that plan. In taking this tack, Ecology shuts the public out of the process.”

Click here to read the Center’s comments on behalf of the Sierra Club.

Posted June 10th

Tell It To The Fish

Idaho agency’s new ruling on Avista’s upper Spokane River water flows is better news for Lake Coeur d’Alene’s dock owners than it is for the river’s struggling red band trout population.

In a much-anticipated decision handed down late last week, the Idaho Department of Environmental Quality has moved to increase minimum flow requirements at Avista Utilities’ Post Falls dam on the upper reach of the Spokane River. The new requirement will double the minimum required flow rates at the dam from the current 300 cubic feet per second to 600 cfs but it falls considerably short of what the science indicates would be the minimum flow rate needed to reverse the decline in the red band trout population. The distinctive native fish live in the river’s free flowing reaches in Idaho and Washington.

“Six hundred cubic feet per second is obviously better than the three hundred,” says Center for Justice attorney Rick Eichstaedt. “It’s better for the fish but it’s still not enough.The Post Falls Dam at high water The science that was done as part of this process said you needed about 770 cubic feet per second to protect red band trout populations that are drastically declining.”

The agency’s decision is a key milepost in the relicensing of the Post Falls dam. Although the relicensing process is convened by the Federal Energy Regulatory Commission (FERC) it is up to the host states to certify compliance with section 401 of the federal Clean Water Act. And that’s what IDEQ did in its June 5th letter to Avista.

The Center for Justice represents the Sierra Club’s Upper Columbia River Group and the Spokane-based Center for Environmental Law and Policy (CELP). Comments CFJ submitted on behalf of the two organizations can be read here. If Sierra Club and CELP choose to appeal the decision, the appeal will go through the IDEQ administrative appeals process and, if necessary, to the Idaho state courts.

The key question, says Eichstaedt, is: “With that amount of water (600 cfs) are we going to be able to reverse the decline of the population of red band trout in the Spokane River?”

Under the IDEQ decision, the minimum flow could be reduced to 500 cfs in drought years.

In comments the Washington Department of Fish and Wildlife submitted to the Idaho agency last month, WFDW addressed the flow controversy by reporting it had worked with Washington’s Department of Ecology, Spokane County Utilities, and the Idaho Fish and Game Department to provide “documentation that a 770 cfs Post Falls minimum discharge flow would protect fish habitat in the upper Spokane River.”

But the agency also advocated a compromise that the agencies had reached.

“In considering Coeur d’Alene Lake level issues, the group developed a recommendation for a 700 cfs minimum discharge flow for the Post Falls [dam]. There were concerns that warm lake-water would impact cool groundwater inflows (fish thermal refugia). A plan was developed to provide interim discharge flows that would be monitored for 5-years to evaluate various discharges on downstream habitat. WDFW supports this approach with the understanding that monitoring results will inform decisions that may increase flows, up to a discharge of 700 cfs at the Post Falls [dam].”

This agreement is folded into the Idaho Department of Environmental Quality certification letter to Avista with the provision that Idaho may require the utility to increase its flows following an initial five year monitoring period. The IDEQ certification requires the company to submit the monitoring plan to the state within six months after receiving its new license for the dam. The purpose of the monitoring plan is to monitor flows and water temperature during low flow periods and make the data available to IDEQ, which will then make a final decision on whether flow modifications are needed to improve water quality. The agency reports that it will seek public comment if it determines that a change in the 600 cfs minimum discharge is warranted.

Posted June 10th

A Publisher’s New Problem

New documents uncovered by a Center for Justice records request highlight a big problem for Cowles Co.’s newsprint subsidiary and its discharges to the Spokane River.

Spokesman-Review publisher and Cowles Company president Stacey Cowles got directly involved in discussions with state officials this spring after the U.S. Environmental Protection Agency rejected a state agency’s proposed new permit that would have lengthened the water quality compliance schedule for a key Cowles Co. subsidiary, Inland Empire Paper.

IEP provides newsprint for the newspaper. It is located in the Spokane Valley and is one of two private companies in Washington that have regulated discharges to the Spokane River.

The newly unearthed documents were provided last week to the newspaper, and are reported on in Sunday’s edition of the Spokesman-Review in a front page story entitled, “Paper plant says it can’t meet accelerated river cleanup goal.” The emails behind the story are also posted on the newspaper’s website. To read the emails, click here ecology-emails.

The internal exchanges raise new questions about whether Cowles sought special treatment from Ecology by contacting the Governor’s office almost as soon as he was briefed on the issue by IEP management in late March. Although Ecology moved to correct its error in the draft permit, the agency also delayed issuing a new version of a river cleanup plan while senior state officials talked with Cowles and paper company representatives to try to solve the sticky regulatory problem.

“We are scheduled to talk internally on Thursday morning,” Ecology’s Eastern Regional Office director Grant Pfeifer wrote to Ecology Director Jay Manning in a March 31st email. “But a decision sooner than that may help ease their [Cowles and IEP’s] anxiety–further: Wed (sic) is an Ed Board [editorial board] meeting with the Spokesman-Review–we could get asked (expect to) about river plans and schedules. Should we slow down the TMDL [the dissolved oxygen regulatory cleaup plan] and get this worked out? Dave [Peeler, Ecology’s water quality program manager] & my recommendation.”

The email chain records that, after being briefed by IEP officials on March 28th, S-R publisher Stacey Cowles called Laurie Dolan, an assistant to Governor Chris Gregoire, at home on Sunday morning, March 30th, to appeal for help from the Governor.

The crisis bloomed late last year when the U.S. Environmental Protection reported it would not approve the draft permit Ecology had negotiated with IEP because its twenty year compliance schedule was double that required under the federal Clean Water Act for an impaired waterway. The Spokane River is currently out of compliance for levels of dissolved oxygen, a problem due, in most part, to the discharge of phosphorus to the river by the private plants and municipal sewage treatment plants.The Inland Empire Paper Company plant on the Spokane River

According to the documents, IEP’s compliance problems are exacerbated by technical problems it has encountered with pollution control methods used to try to drastically reduce its waste water phosphorous discharges to the Spokane River. In a March 14th email to Ecology Director Jay Manning and other Ecology officials, Peeler reported:

“Jay, for your information IEP had been depending on new treatment technology and internal recycling of a large portion of their wastewater to enable them to meet their new permit requirements. Unfortunately, their scaled up pilot treatment plant is performing poorly due to clogging and they have not been able to make it work consistently and at higher flows, and the percentage of recycled water they can successfully use it not as high as earlier hoped. They are not interested in NPS [non-point source] trades or other ‘delta elimination plans’– they want to be independent and not worry about liability if reductions aren’t achieved by others. Although we had hoped to get them to consider other alternatives, they don’t appear to be willing to do so.”

According to the newspaper’s story this morning (June 8th) IEP has indicated it is willing to sue Ecology and/or EPA if it cannot get the permit changes that it is seeking.

Posted June 8th

Dishonorable Discharge

Spill from notorious Canadian polluter Teck Cominco sends lead and acid into Columbia River.

The Department of Ecology (Ecology) is monitoring potential human and environmental health effects after the Teck Cominco Ltd. lead and zinc refinery in Trail, British Columbia, released more than 1,000 gallons  of hydrofluoric acid containing about 2,100 pounds (946 kilograms) of lead into the Columbia River on May 28.*

The Center for Justice has represented the Sierra Club and theTeck Cominco wastes have contaminated northern reaches of Columbia Sierra Club of Canada in recent legal proceedings aimed at forcing Teck Cominco to clean up contamination resulting from past discharges of thousands of tons of toxic “slag” directly into the Columbia.

With regard to the new spill, Ecology is working with British Columbia and other Washington state and local agencies to determine possible effects on public health and the environment. Ecology believes it is unlikely that groundwater wells will be affected because the spill was diluted in the spring high-flow conditions.

“Historically, Washington’s environment has paid the price for pollution released from this facility. We are deeply concerned that this spill could add to that unfortunate legacy,” said Ecology Director Jay Manning. “Teck Cominco should use every available resource to negate the adverse environmental effects from this spill. We will do what we can to minimize the spill’s impact here in Washington to protect Lake Roosevelt and the people who live in the area.”

The spill occurred after a pipe failed at the Teck Cominco facility, located about 12 miles north of the Washington border, and continued for more than four hours starting at about 5 p.m. yesterday. State and local officials did not receive notification of the incident until just before midnight Wednesday.

The Teck Cominco facility has been shut down since about 10 p.m. yesterday to make repairs.

Investigators from British Columbia’s Ministry of Environment have been working with the company compiling data since yesterday and are in transit to the release site to determine the environmental effects of the release material as well as clarifying potential cleanup strategies.

Ecology is working with British Columbia to help:

* Identify the possible extent of contamination and potential human health issues.
* Observe and respond to potential effects on water quality, sediment and wildlife.
* Identify and protect important fish and wildlife habitat areas.

British Columbia investigators are awaiting results of water sampling near Wenata, British Columbia, near the Washington border, and Ecology investigators are taking samples near the Canadian border to help determine the full extent of spill.

Manning expressed appreciation for British Columbia’s Ministry of Environment and its cooperation with Ecology.

*This story was updated in August 2008 after Ecology notified us that the earlier release from the agency (based on information provided by the BC Ministry of the Environment) under-reported, by ten times, the volume of acid solution containing the lead. The amount of lead (946 kilograms) is the same.

Posted May 30th

Sources–Washington Department of Ecology and Center for Justice

Magic Pollution, Part 1

How the Environmental Protection Agency Used a Paper Trick to Clean Up the Spokane River

If it were movie, and if it were about a less serious subject, the controversy over phosphorus pollution and the Spokane River might have a scene in it like the magic grit scene in the 1992 classic comedy “My Cousin Vinny.”

Joe Pesci, playing the role of a street-smart but almost hopelessly out of place Brooklyn lawyer (Vinny) in a rural Alabama court room, cross examines a good ol’ boy, a mister Tipton. Tipton has testified, for the prosecution, that from his kitchen window he has witnessed two young men (Vinny’s clients) enter and leave the Sack o’ Suds convenience store, where the clerk had been murdered.

Spokane River at the Idaho state line.

Spokane River at the Idaho state line.

With Tipton having testified that the time lapse from when he saw the young men enter the store to the time he saw them leave was the five minutes that it took him to cook his breakfast, Pesci’s Vinny puts to use something he’d learned from a cook at a diner in Wazzu City, Alabama. Vinny had learned about making grits.

When Tipton tells him he’d had eggs and grits for breakfast, Vinny asks: “Instant grits?”

“No self-respectin’ Southerner uses instant grits,” Tipton replies, and wins a nodding chuckle from the jury. “I take pride in my grits.”

“So Mr. Tipton,” Vinny asks, “how could it take you five minutes to cook your grits when it takes the entire grit-eating world twenty minutes?”

Tipton becomes flustered and replies that he must be a fast cook.

“Well,” Vinny replies, “I guess the laws of physics cease to exist on top of your stove. Were these magic grits? Did you buy them from the same guy who sold Jack the magic beans for his beanstalk?”

“I guess the laws of physics cease to exist on top of your stove,” Joe Pesci’s Cousin Vinny says in the movies. Here, in real life, the nation’s top environmental agency pretends that the laws of math and biology cease to exist where the Spokane River flows out of Idaho.

The analogy from the southern fried comedy to the Spokane River controversy is not perfect. For one thing, the math is simpler for the river than it is in the movie. This is because the Environmental Protection Agency (EPA) and the Washington Department of Ecology (WDOE) are standing by a policy decision that literally proposes that, when it comes to the Spokane River, 2 + 2 = 2. [Click here to read CFJ attorney Rick Eichstaedt’s summary of this issue].

It’s also not about magic grits. Instead, it’s about seemingly magic pollution, specifically phosphorous and other oxygen depleting nutrients in treated sewage that, in the authoritative but nonetheless contrived view of the two agencies and their consultants, are now made to vanish as the Spokane River flows under Interstate 90 just west of Post Falls, Idaho

How did it come to this?

The decision to adopt the magical math approach is a recent one. But the pressures and temptations and politics that led to this ruse go back 36 years to the adoption of the Federal Clean Water Act (CWA).

Under this landmark law, states like Washington that have delegated CWA enforcement responsibilities are responsible for formally designating waterways that are out of compliance with a state’s surface water quality standards. Once designated as out of compliance, a water body becomes subject to a cleanup plan (regrettably termed a TMDL for Total Maximum Daily Load) the purpose of which is to sufficiently lower pollution levels in the river or lake, so that it complies with water quality standard(s).

Among the water quality standards that the Spokane River currently does not meet is that for dissolved oxygen (DO). Dissolved oxygen is critical for fish. Because fishing is one of “uses” of waterways to be protected under the Clean Water Act, the Spokane River was first listed as out of compliance for dissolved oxygen in 1996. But the knowledge among polluters and regulators that DO was a problem for the river and would have to be dealt with, by law, actually goes back thirty years. The first effort to systematically address the problem–a 1989 phosphorus management plan–failed.

The reasons for the low dissolved oxygen levels are a bit complicated. But the problem is almost entirely due to two factors:

1) Dams operated by Avista create pools of relatively stagnant water behind them in the warmer months;

2) Phosphorus from sewage treatment plants and industrial polluters is discharged into the river in large enough quantities to fuel algae growth and this, in turn, leads to lower oxygen levels because oxygen is consumed as dying algae decomposes.

It took most of a decade for EPA and the Washington Department of Ecology to agree on how they wanted to deal with the dissolved oxygen problem on the Spokane River. The stakes were high because of the vise-like pressure between the law and the science.

The science was unyielding. Absent a decision to remove Avista’s Long Lake dam, discharges of phosphorus into the Spokane River would have to come down to essentially background levels in order to meet state and tribal water quality standards.

This news was highly unwelcome by the public and private entities (sewage treatment plants in Idaho and Washington, and two private industries in Washington) who were either discharging polluted effluent into the river or, in the case of Spokane County, had plans on the books to do so. They formed a consortium and hired big law firms and a nationally powerful technical consulting firm–CH2M Hill–to push back on the regulators.

The science and the scientists didn’t budge easily. At least, not at first. In 2004, the Department of Ecology published its draft TMDL that proposed to limit phosphorus discharges into the Spokane River to ten micrograms per liter, a concentration so small that most river dischargers believed, and still believe, it would not be attainable with modern effluent treatment technology.

It was at this point that the pressure on the agency and the agency scientists who’d produced the draft cleanup plan began to shove the regulatory discussion, such as it was, in a new direction.

Ken Merrill, the Ecology scientist who’d drafted the 2004 plan, became a marked man, subject to intense and personal criticism from officials and consultants representing river dischargers. The same was true of Dave Ragsdale, the EPA scientist who’d participated in the scientific reviews of the developing plan and who oversaw the development of Merrill’s 2004 draft plan. It didn’t matter at all that there was high public turnout at hearing’s on the 2004 draft, and that the public comment was overwhelmingly favorable.

The threat from the consortium of Spokane River dischargers is that if the cleanup plan wasn’t changed, they would pursue legal action against the state to lower the water quality standard for the Long Lake portion of the Spokane River. State regulators and experts for environmental groups like the Sierra Club both were highly skeptical that a legal challenge to lower water quality standards would succeed on the merits. But, by this time, the issue had far less to do with the law, than it had to do with politics–specifically the political power wielded by the companies and municipal corporations who discharge phosphorus into the river.

In February 2005, in exchange for an agreement with the consortium of river dischargers not to initiate a legal challenge to the 2004 TMDL, the Washington Department of Ecology agreed to assemble a Spokane River TMDL collaboration.

The ostensible purpose of the collaboration was to arrive at a consensus plan for implementing a Spokane River cleanup plan that met the requirements of the law and mollified river dischargers. As the Spokesman-Review’s James Hagengruber documented in a September 9, 2007 story, however, behind the scenes the science was being bent to a breaking point. Both Ken Merill and EPA’s Dave Ragsdale had been silenced, and Merrill’s replacement at Ecology, hydrologist Drea Traeumer, would eventually resign (see The Whistleblower) rather than lend her name to a new version of the plan.

So Much for the Math

EPA’s role in the collapse of the science is important for several reasons, not the least of which is its lead role, nationally, in broadly setting the terms upon which the nation’s bulwark environmental laws, like the Clean Water Act, are enforced. This matters more in the context of the Bush Administration’s well-documented hostility to environmental regulation and science.

Specifically with regard to the Spokane River, EPA has two important roles to play. As it does nationally, EPA is supposed to take the lead in orchestrating federally required cleanup plans that transcend state boundaries. Secondly, because the state of Idaho has never requested delegated authority from the federal government to enforce the Clean Water Act, it falls to EPA to write the waste water permits for Idaho’s dischargers.

What this means is that when EPA quietly made a unilateral decision six months into the Spokane River Collaboration about how it was going to regulate Idaho’s waste water, it turned the whole process on its head. Whereas the spirit and letter of the Clean Water Act call for EPA to take the lead in collaboration among states, here the agency not only forfeited that role, but actually undermined the collaboration.

The ostensible purpose of the collaboration was to arrive at a consensus plan for implementing a Spokane River cleanup plan that met the requirements of the law and mollified river dischargers. As the Spokesman-Review’s James Hagengruber documented in a September 9, 2007 story, however, behind the scenes the science was being bent to a breaking point.

By the conventions of modern journalism, it would have been difficult for reporters to simply state that EPA had just erased provisions of the Clean Water Act and tortured the math in a way that would embarrass a second grader. There has to be balance, and there has to be a deadpan deference to the weight of a federal agency, with a long name and logo, with well-educated officials and scientists on its payroll.

Except that what EPA had done was every bit as far farcical as Mr. Tipton’s fast-cooking claim in the magic grit scene in My Cousin Vinny. We just don’t have it on film.

What we have, instead, is a poignant and amusing email.

The sender was Mark Hicks, a senior analyst in Ecology’s water quality program who oversees compliance with the state’s water quality standards.

“I am a little bewildered about how EPA is dealing with dissolved oxygen issues right now,” he wrote to a list of Ecology and EPA officials on September 1, 2005.

Hicks’s bewilderment was this. Up until that point, the clear premise of the Spokane River cleanup is that phosphorous discharges into the Spokane River above Long Lake could only result in a small and carefully calculated decline in dissolved oxygen levels. That decline–Hicks and other scientists refer to it as a “depression” against natural background levels–had been calculated at 0.2 milligrams per liter of water. Anything more than that and the cleanup plan would be a failure, because the water quality standard needed to protect fish would be violated.

Yet, stunningly, EPA was taking the position that it could allow a 0.2 decline for Idaho pollution into the Spokane River, and another 0.2 decline for Washington dischargers.

“For the Spokane River,” Hicks continued, “EPA appears poised to grant a 0.2 mg/l depression from naturally low dissolved oxygen levels to the point source dischargers in Idaho, and then grant anotheor 0.2 mg/l depression for the Washington dischargers. However, our standards only allow a cumulative 0.2 mg/l depression below naturally occurring low oxygen levels for all human sources combined (point and non-point), not 0.4 mg/l.”

Hicks then carefully listed eight poignant questions with bullet points that, to put it charitably, highlighted the absurdity of what EPA was proposing and how it was likely to play out.

“The current dialogue on dissolved oxygen does not appear either defensible or logical,” he concluded.

In short: 2+2 cannot equal 2. It has to equal 4.

But EPA had made its decision.

Having made a mockery of the math. EPA would next make a mockery of the law and, indeed, the whole purpose of the interstate Spokane River TMDL “collaboration” which the agency had given its support to and participated in.

Under the Clean Water Act, the federal government through the EPA is supposed to be fostering interstate cooperation and coordination to restore polluted rivers and other water bodies in watersheds that cross one or more state boundaries.

An obvious concern for river cleanup advocates immersed in the struggle to resolve the complex pollution problems of the Spokane River is how this decision will affect future decisions. As Bonne Beavers points out, coming right behind the dissolved oxygen cleanup plan will be cleanup plans that will have to confront toxic contaminants like PCBs.

A good example of this is EPA’s leadership in the Mid-Atlantic region in putting together a cleanup plan for dissolved oxygen in the Christina River basin in Pennsylvania, Delaware and Maryland. This is a role EPA took on eight years ago at the invitation of the three states involved. Not a problem. As EPA’s own write up of the Christina River TMDL lays out, “the Clean Water Act requires for interstate waters that the water from the upstream state meet the water quality standards of the downstream state at or before the state line.” Moreover, EPA notes that in putting the cleanup plan together it established pollution load allocations “in order to attain and maintain the applicable water quality standards of both upstream and downstream waters consistent with our authority” under the Clean Water Act.

This fits with what are known as the Clean Water Act’s “antidegredation” philosophy and how that philosophy is set forth in rules (40 CFR §122.44(d)(1)(i)) that prohibit EPA from granting permits for pollution sources in upstream states that “cause or contribute to the violation of water quality standards” in downstream states. This is important because, again, with the Idaho dischargers it is EPA itself that gets to write the permits.

Center for Justice attorney Bonne Beavers, who works with CFJ colleagues Rick Eichstaedt and Shallan Dawson on the Center’s river project, succinctly describes how EPA sidestepped the rule. Because the Idaho dischargers use up slightly less than all of the allowable 0.2 mg/l dissolved oxygen depletion for the river, they technically don’t “cause” the rule to be violated. But the federal rule also requires all contributions to be accounted for and properly regulated. And that didn’t happen.

“There’s clearly no way that the Idaho dischargers are not contributing to the downstream violation of Washington water quality standards,” Beavers says. “What EPA did, essentially, was white-out the word ‘contribution’ from the federal regulation. It’s very conspicuous. In the permit fact sheets for the three treatment plants EPA discloses that these discharges have the potential to cause or contribute to water quality violations in Washington. But when it gets down to setting the actual permit limits EPA repeatedly asserts the discharges will not cause violations of the standard in Washington. That allows Idaho to use up almost all the available phosphorus pollution loading. Washington can’t legally put any in now. We were aghast.”

Ecology Takes a Pass

One would think, then, that the Washington Department of Ecology–which had the opportunity to weigh in on the Idaho permits and protect Washington’s right–would have strenuously objected. And, at least in one sense, that’s what Mark Hicks’s September 1, 2005 email (which was distributed to at least three EPA officials) did.

But then, nothing happened. Even though EPA was proposing to allow Idaho dischargers to take up virtually all the very limited capacity of the Spokane River to absorb phosphorus, Ecology didn’t object. Nor did Washington dischargers.

The reason for this was part of what scientist Drea Traeumer tried to explain to the Washington legislature earlier this year when she tesitified in support of the state’s new whistleblower protection bill. By just arbitrarily wiping the slate clean at the Idaho line, EPA and Ecology would be giving Washington dischargers a fresh new allotment of 0.2 mg/l of oxygen-depleting pollution to work with. In other words, the payoff for giving Idaho its number, was to give Washington its number, undiminished by the Idaho pollution contribution. The heck with reality. The heck with the math. The heck with the river.

An obvious concern for Beavers and other river cleanup advocates immersed in the struggle to resolve the complex pollution problems of the Spokane River is how this decision will affect future decisions. As Beavers points out, coming right behind the dissolved oxygen cleanup plan will be cleanup plans that will have to confront toxic contaminants like PCBs.

“What’s now to stop EPA and Ecology from using the same ruse to essentially double the PCB pollution allowance in the Spokane River?” she asks. “Moreover, what’s to stop EPA from using the bogus math of the Spokane River dissolved oxygen TMDL as a precedent for other regional and national watersheds that transcend state boundaries?”

As egregious as the bogus math of the Spokane River dissolved oxygen TMDL is by itself, there is more to come. As both Trauemer and Beavers point out, the plan adopted under the Spokane River TMDL Collaboration doesn’t actually pack up all the new pollution allowance and give it to point source dischargers like the Spokane wastewater treatment plant and Inland Empire Paper Company. Instead, it gives all this new pollution loading allowance to so-called non-point pollution sources, mainly agricultural sources in the Hangman Creek watershed.

That would seem to make no sense, until you look at the history of the Spokane River TMDL and see that what’s being cooked up is a con game, inside a con game.

–Tim Connor