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Title: SB 5028: Letter to Senate
Author: Rachael Paschal Osborn
Date: January 20, 2003 | ID#: 030120
Category: Washington water law and policy
Keywords: SB 5028, MVID bill, quality quantity 
 

visits since August 19, 2003

Rachael Paschal Osborn attorney at law
2421 West Mission Avenue Spokane WA 99201
509.328.1087 tel / 509.328.8144 fax
rdpaschal@earthlink.net

January 20, 2003

Senator Karen Fraser
Senator Pat Hale
Senator Jim Honeyford
 
Subcommittee on Natural Resources, Energy & Water
Washington State Legislature
Olympia, Washington

Re: SB 5028

Dear Senators,

Thank you for the opportunity to provide testimony on Senate Bill 5028, an act that attempts to defy the laws of physics and de-couple the links between water quantity and water quality. I urge you to reject this special interest bill.

I represent Okanogan Wilderness League in a pending appeal of a water quality enforcement action brought by the Department of Ecology against the Methow Valley Irrigation District. I also represented several public interest organizations in an appeal, decided last July by the state Supreme Court, involving Pend Oreille PUD's proposed hydroelectric dam on Sullivan Creek. These legal rulings and events are a motivating factor for SB 5028.

Washington's water quality laws require protection of instream flows. Instream flows are, of course, profoundly affected by the exercise of water rights, which typically deplete flows and cause a variety of water quality problems, including increased temperature, lowered dissolved oxygen, and reduced capacity to assimilate other pollutants. Reduced instream flows also reduce the ability of a river to support fisheries, recreation and other public uses, in violation of state water quality laws. SB 5028 attempts to deflect the protections afforded to Washington's rivers under state water quality law by providing a special exemption for water right holders.

In 1994, the United States Supreme Court ruled that Washington's water quality standards require that the state rivers have adequate water flowing in them to protect public uses, such as salmon fisheries. Writing for the court, Justice Sandra Day O'Connor (a Reagan appointee) held that any attempt to separate water quantity and quality is "an artificial distinction":

In many cases, water quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery. In any event, there is recognition in the Clean Water Act itself that reduced stream flow, i.e., diminishment of water quantity, can constitute water pollution.

First, the Act's definition of pollution as "the man-made or man induced alteration of the chemical, physical, biological, and radiological integrity of water" encompasses the effects of reduced water quantity. 33 U.S.C. § 1362(19). This broad conception of pollution--one which expressly evinces Congress' concern with the physical and biological integrity of water-- refutes petitioners' assertion that the Act draws a sharp distinction between the regulation of water "quantity" and water "quality."

Moreover, § 304 of the Act expressly recognizes that water "pollution" may result from "changes in the movement, flow, or circulation of any navigable waters ..., including changes caused by the construction of dams." 33 U.S.C. § 1314(f). This concern with the flowage effects of dams and other diversions is also embodied in the EPA regulations, which expressly require existing dams to be operated to attain designated uses. 40 CFR § 131.10(g)(4) (1992).

In so ruling, the U.S. Supreme Court affirmed the Washington State Supreme Court, which had previously ruled that "man-induced alteration of streamflow level is "pollution." More recently, in the Sullivan Creek case, the Court reviewed the legislative history surrounding the federal Clean Water Act and determined that legitimate water quality regulation to protect stream flows is acceptable, even if it affects existing water rights.

SB 5028 ignores and futilely attempts to destroy what even the courts have interpreted as required protections under the federal and state Clean Water Acts. The Senate should reject this unfortunate proposal, first and foremost, because it is inconsistent with federal law and would create a number of problems for federal funding of state programs and legal preemption.

Beyond the federal-state consistency problem, there are many reasons why SB 5028 should be rejected. Chief among them is the fact that SB 5028 proposes to provide to water right holders a special exemption from the laws that protect the public's interest in Washington's rivers, streams, wetlands, and marine waters. Why should every other citizen in the state be subject to our water quality laws, but water right holders &endash; that select and relatively small percentage of Washington citizens who enjoy an extraordinary right to use public waters &endash; should not be held accountable to the same laws? Clearly, SB 5028 is special interest legislation that would provide an unconscionable privilege to a select few at the expense of the public.

SB 5028 represents a regressive departure from 30-plus years of efforts at every level of government, commencing with the Water Resources Act of 1971, RCW Ch. 90.54, to forge legal linkages between water quality and water quantity. SB 5028's proposal to destroy the connections between water quantity and quality flies in the face of both the public interest and the physical connection that exist between the two.

I respectfully urge the Senate Subcommittee on Natural Resources, Energy & Water to reject SB 5028.

Yours very truly,

Rachael Paschal Osborn

cc: Senate Committee members