Ecology Starts Water Rights Adjudication for Nooksack River System

Ecology announced that it has filed a water rights adjudication in Whatcom County Superior Court to determine the water rights for some 30,000 water users in and around Whatcom County. The purpose of a water rights adjudication is to resolve competing claims to water, especially in light of diminishing quantities of waters resulting from climate change. The process is important to Trout Unlimited because it can help protect trout and salmon by protecting instream flows, especially during low-flow periods.

WRIA 1 - Nooksack Watershed - Source: Ecology

Additional information can be found on Ecology’s website at https://ecology.wa.gov/about-us/who-we-are/news/2024-news-stories/may-2-nooksack-adjudication-filing

WCTU Appeals Small-Scale Motorized Mining HPA

In 2020, after years of legislative advocacy, WCTU and others were successful in convincing the Washington legislature to enact a state law that banned suction dredge mining (SDM) in ESA-designated critical habitat for threatened or endangered salmon, steelhead, and bull trout. Background on this effort is described in numerous TU articles and press releases.  See, e.g., Win for Washington waters: What it took (2020).  Yet, in 2023, we learned that several small-scale miners had applied for hydraulic project approvals (HPAs) to resume mining in ESA-designated streams in the Peshastin Creek watershed. 

WDFW Photo of small-scale motorized mining.

The miners propose to mine by pumping creek water to lined ponds above the ordinary high water level.  The WCTU is challenging one of those HPAs by filing a formal appeal with the Washington Pollution Control Hearings Board (PCHB).   WCTU is challenging the HPA on several grounds, including (1) whether WDFW failed to consider how the proposed activity would impact the amount of water in the streams and if it would cause direct or indirect harm to ESA-listed salmon and trout, (2) whether the proposal to discharge process water to the adjacent gravels triggers the requirement to obtain an NPDES permit, and (3) whether WDFW failed to undertake an environmental review under the State Environmental Policy Act.  The Cascadia Law Group represents WCTU pro bono.  A huge thanks!

WDOE Stormwater Work Group: 6PPPD Subgroup Meeting - December 13, 2023 1:00-3:00 pm

The Washington Department of Ecology’s 6PPD Workgroup is holding another meeting on 6PPD-quinone on December 13th from 10-3pm  Information on how to participate can be found at https://sites.google.com/site/pugetsoundstormwaterworkgroup/  The agenda is located at this link. 

According to the announcement, the session will include updates on:

• Legislative budget reporting, new 6PPD staff, current projects;

• Soliciting for new projects through a Request for Proposals (RFP) and Interagency Agreements (IAAs); and

• SWG Stormwater Action Monitoring (SAM) study selection process: 4 new funded projects with 6PPD and 6PPD-q parameters.

It will also include a presentation on King County’s “Testing Removal of 6PPDQ and Coho Salmon Lethality by High Performance Bioretention Media Blends” 

Idaho Conservation League v. Poe: Ninth Circuit Affirms Clean Water Act Liability for Idaho Suction Dredge Miner

Congratulations to the Idaho Conservation League.

The Ninth Circuit Court of Appeals upheld the Idaho district court’s decision in Idaho Conservation League v. Poe, a citizen suit enforcement case brought against a suction dredge miner who operated without obtaining a Clean Water Act (CWA) NPDES permit.  As I had anticipated from watching the oral argument, the Court upheld the lower court’s finding the miner liable for a $150,000 civil penalty, holding that (1) suction dredging adds pollutants to the river and thus requires an NPDES permit; and (2) EPA and the Corps reasonably treat suction dredge discharges as the type of pollution requiring an NPDES permit and not as dredged material requiring a CWA Section 404 permit.  

Image from ICL’s Answering Brief in ICL v. Poe. (2023)

Simply put, the Court followed its prior and controlling precedent in Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990).  The big point is that the resuspension of streambed materials resulting in the dredging operation is nonetheless the “addition” of a pollutant, even though the materials originated within the streambed.  This is different from cases where polluted waters are moved from one location in a waterbody to another.  The decision can be found at this LINK. 

ESA Lawsuit Filed Against Tire Manufacturers’ Use of 6PPD Linked to Coho Mortality

Oregon Department of Fish and Wildlife

The WCTU Advocacy Committee continues to follow developments aimed to control and prevent the discharge of 6PPD-quinone to streams in the Northwest.  As discussed in prior posts, 6PPD-quinone (a transformation compound from 6PPD used in tires) has been linked to acute toxic mortality to pre-spawn adult coho salmon.  Studies are also finding toxicity to brook trout and rainbow trout.  Last week, Earthjustice, on behalf of several fishing groups, filed a lawsuit against the tire manufacturers alleging a violation of the Endangered Species Act.  The lawsuit alleges that the manufacturing and distribution of tires containing 6PPD causes the “take” of ESA-protected coho salmon, Chinook salmon, and steelhead trout.  It seeks to prohibit the tire industry from continuing to manufacture and distribute tires made with 6PPD.  We will continue to monitor this lawsuit.  An article in the Seattle Times provides a summary.

6ppd-quinone and Coho Mortality: EPA Grants Petition under TSCA to Review 6ppd from Tire Wear Particles

Coho returning to spawn in a Puget Sound creek (K. King / USFWS).

 On November 2nd, EPA granted a petition from the Yurok Tribe (OR & CA), the Port Gamble S’Klallam Tribe (WA), and the Puyallup Tribe of Indians (WA) under Section 21 of the Toxic Substances Control Act (TSCA).  In granting the petition, EPA is agreeing to undertake an evaluation of 6ppd under Section 6(a) of TSCA to determine whether “the manufacture, processing, distribution in commerce, use, or disposal of a chemical substance or mixture, or that any combination of such activities, presents an unreasonable risk of injury to health or the environment.” 

The letter granting the petition acknowledges the hazards from 6ppd but is careful to state that it does not yet support issuing a rule under TSCA 6(a).  Instead, EPA will undertake a rulemaking proceeding to gather more information on the hazards of 6ppd. If it then determines that a TSCA Section 6(a) rule is warranted, it could limit or even prohibit the manufacturing, processing, or distribution in commerce of 6ppd.  EPA intends to issue an advanced notice of proposed rulemaking in the Fall of 2024 to gather more information for making a TSCA Section 6(a) decision, with a final rule to be issued “before 2025”. 

Ninth Circuit panel is skeptical of suction dredge miner’s defense in $150,000 enforcement action.

Suction dredge mining photograph from brief of Idaho Conservation League.

During oral argument in the appeal of a lawsuit (Idaho Conservation League v. Poe) brought to enforce the Clean Water Act permitting requirements against an Idaho suction dredge miner, the three-judge panel of the Ninth Circuit Court of Appeals expressed strong skepticism toward the miner’s principal defense. 

The miner argued that its suction dredge mining operation does not involve a “discharge” requiring a Clean Water Act NPDES permit because the process does not result in “any addition of any pollutant” to the Clearwater River.  The miner reasoned that gravel, sediments, and other materials disturbed by the mining operation are already in the stream; therefore, nothing has been “added”.  The defect in this argument is that the Ninth Circuit addressed this issue in prior cases, in particular Rybacheck v. EPA, and upheld EPA’s interpretation that the “addition” of pollutants includes the “resuspension” of sand and dirt discharged in wastewater from a placer mining sluice box, “even if the material discharged originally comes from the streambed itself.”  The three judges all questioned why they should overrule their earlier decisions. 

News Report: Snake River Toxic Algal Bloom

Another troubling report.  The photo was taken during a TU-led overflight with EcoFlight on September 29, 2023.  The location is just upstream of Lower Granite Dam.  Eric Crawford of TU is quoted in the article. 

Large Snake River toxic algal bloom hasn’t happened before. NWNews (Courtney Flatt)

Algal Bloom above Lower Granite Dam (9/29/2023)

Algal Bloom above Lower Granite Dam (9/29/2023)

WDOE Webinar on 6PPD & Coho Mortality - June 21, 2023 from 1 to 3 p.m. PDT

Photo source: WDOE (Roger Tabor, USFWS)

The Washington Department of Ecology is holding a webinar on 6PPD-quinone on June 21. Information can be found at https://www.ezview.wa.gov/site/alias__1962/37858/addressing_6ppd.aspx

The purpose of the webinar is to provide education and updates on the work that Ecology is doing to address the impacts of 6PPP-quinone on coho salmon (especially adults that are especially sensitive) and other fish. We can also submit questions in advance of the webinar.  

American Fisheries Society gives statement on the Lower Snake River Dams

The Snake basin historically supported nearly fifty percent of the Chinook and steelhead in the entire Columbia Basin, but over the past 25 years, the Snake has averaged less than two returning adults for every 100 smolt. 

“It is clear that breaching the four lower Snake River dams is necessary to (1) substantially improve the probability of recovering these cultural and ecological keystone species to healthy and harvestable populations and (2) safeguard those fishes from extinction.” 

The AFS resolution confirms the path forward: the dams must go.

The AFS represents over 7,500 professional fishery scientists and resource managers across the world with the common mission of improving the conservation and sustainability of fishery resources and aquatic ecosystems. 

Read the official AFS statement.

Support WCTU and the Green River Valley Alliance in their efforts to protect the Green River Valley by Mount St. Helens from the threat of mining!

SW Washington has new representation in Congress as Rep. Marie Gluesenkamp Perez was recently sworn into office. We need all the help we can get to make it clear to Rep. Gluesenkamp Perez and our other federal representatives that Mount St. Helens and the Green River Valley are no place for a mine! This area is beloved by hikers, mountain bikers, backcountry horsemen, hunters, anglers, botanizers, foragers, and more for its remote and peaceful location and numerous recreational opportunities. The area is also incredibly historically and culturally significant to the local Tribes including the Cowlitz Indian Tribe and the Confederated Tribes and Bands of the Yakama Nation, both of which oppose mining on this landscape. The Green River itself is a gene bank river for wild steelhead, is eligible to be nominated as a Wild and Scenic River, and provides clean water to downstream communities.

You can get involved and help us get the attention and support of our elected officials by signing the Alliance’s petition and sharing it with your friends and loved ones. The petition asks our congressional representatives to support our call for a legislative mineral withdrawal, a federal land management tool which would provide permanent protections against mining without impacting any other regularly permitted activities such as recreation, trail maintenance, or timber harvesting.

Together, we can make 2023 an incredible year of advocacy and show once and for all that this is no place for a mine!"

Sign the petition here.