February
14, 2005
Honorable
Christine Gregoire
c/o
Laurie Dolan, Policy Office Director
and
c/o Keith Phillips, Water Policy Assistant
Executive
Policy Office
Office
of the Governor
P.O. Box 40002
Olympia, WA 98504-0002
Via
U.S. Mail and Facsimile: 360-753-4110
Re: Spokane River dissolved oxygen
Dear
Governor Gregoire, Ms. Dolan and Mr. Phillips,
This
letter is provided on behalf of the Upper Columbia River
Group of the Sierra Club, the largest environmental
organization in the Spokane region. Our
members fish, paddle, hike and bike on and near the Spokane
River and generally use and enjoy the riverís many
amenities. The Sierra Club has,
for the last two years, been engaged in a ìSpokane
River Project.î This
project is designed to educate the public about the value of
the Spokane River along with its water quality and quantity
problems, and to actively engage in the many different
permitting and planning processes now ongoing that will
affect the health of the Spokane River for the coming 30-50
years.
A
series of events relating to the dissolved oxygen Total
Maximum Daily Load (TMDL) and Use Attainability Analysis
(UAA) have put Spokane River water quality matters into
immediate focus. The TMDL,
delayed for a number of years, was finally released for a
public comment period that ended on December 31, 2004.
Spokane River dischargers simultaneously filed the UAA
request, along with a petition for rulemaking that forced a
quick decision by the state. Based
upon the imminent denial of the UAA by the Department of
Ecology (Ecology), there is a sudden push to resolve
dissolved oxygen issues. We
disagree with this ìpanicî approach to resource
management. Nonetheless, because
we understand Ecology must address the UAA rule petition in
the next two weeks, we write to offer suggestions about
setting up an effective collaborative process to work out
solutions to this important resource management issue.
We also describe our concerns with the Spokane Chamber of
Commerceís ì9 point plan.î
Sierra
Club has devoted substantial time and resources to
participation in the public processes designed to address
Spokane River cleanup. Sierra
Club participates on the advisory committees for both
Ecologyís DO TMDL and the Spokane River
dischargersí DO UAA. Last
year we submitted three significant comment letters on the
TMDL to Ecology, including a proposed implementation
strategy that contemplates a comprehensive strategy for
river cleanup. See Attachments
1, 2, 3. That submittal was
utilized to develop the Summary Implementation Strategy
(SIS) contained in the draft TMDL. Sierra
Club has also commented extensively on Ecologyís
draft guidance for processing UAAs, and has endorsed strong
public inclusion in the UAA review process.
Those comments are reflected in our concerns, offered to
Ecology in January, that the Spokane River UAA rule petition
not be used to as a mechanism to obviate public review of
the document. See Attachments 4,
5.
Proposal
for a Collaborative Process
Sierra
Club endorses the concept of establishing a collaborative
process for resolving dissolved oxygen water quality
problems in the Spokane River. However,
we cannot help but observe that numerous efforts to bring
interested parties together to discuss these issues have
already been undertaken, none of them particularly
successful. We also note that
the DO TMDL has been delayed for several years, at the
request of the dischargers, to review the scientific
modeling that underpins the TMDL and address other issues.
See Attachment 6 (chronology). More
extensive delay is simply unreasonable.
We
therefore feel very strongly that any new process must be
designed to obtain legally enforceable results in a
reasonable time frame. If the
parties cannot agree to a resolution that is protective of
Spokane River water quality, then Ecology must move forward
to implement the terms of its TMDL. We
also believe that an understanding that failure to achieve
results will result in Ecology action will motivate the
parties to come to resolution. Regardless of the outcome,
Ecology must retain and exercise its responsibility to make
final decisions regarding the nature and extent of any
cleanup plan.
Sierra
Club offers the following concepts for a collaborative
resolution of dissolved oxygen issues:
(A)
The
process will operate within the framework of the draft DO
TMDL and will be focused on mechanisms to achieve the
existing dissolved oxygen standard as well as meeting the
downstream DO standards promulgated by the Spokane Indian
Tribe.
(B)
The
process will focus on developing adaptive management
approaches, using the multi-phase implementation strategy
contemplated in the TMDL. Only
if it is learned, after implementation, that
achieving existing standards is not possible, will the
option of changing water quality standards be explored.
(C)
The
process will address the following sources of DO problems:
a.
Avistaís
dams, especially Long Lake Dam,
b.
the
contribution of nonpoint source pollution, and
c.
the
impacts of water allocation and related depletion of
instream flows.
(D)
The
process will explore means by which Spokane County may
obtain a permit for a new wastewater treatment facility.
(E)
The
process will include a meaningful discussion of waste
treatment technologies, conservation measures, and other
structural/operational measures that will meet cleanup
measures and Washington water quality requirements.
(F)
The
process will be structured to require active, good-faith
participation intended to obtain results.
If the process is non-productive, it will come to an end and
Ecology will move to finalize the DO TMDL.
(G)
The
process will take no longer than six months.
This time frame is appropriate because, once approved by EPA,
the TMDL contains a year-long period to create a detailed
implementation plan.
(H)
Participation
is voluntary and no party relinquishes jurisdictional
authority.
(I)
The
outcome of the process will have legal consequences, i.e.,
it will be implemented into the final TMDL and new NPDES
permits for all Spokane River dischargers upon its
completion. If the process is
not successful, Ecology will move forward with the TMDL and
NPDES permits as required by law.
(J)
The
process will be inclusive of all interests within the
community. The State of
Washington will see to appropriate government-to-government
communications with the Spokane and Coeur díAlene
Indian Tribes, as well as coordination with EPA.
While
the above agenda is ambitious, we believe it is necessary to
a comprehensive resolution of the Spokane Riverís
dissolved oxygen problems. Again,
however, we reiterate that this process may not be used as
basis for significant delay of the cleanup plan.
Nine
Point Plan
We
would also like to share with you our concerns about the
so-called ì9 Point Planî recently transmitted
by the Spokane Regional Chamber of Commerce.
We oppose this plan because it does not offer a framework for
resolving issues. Instead, it
appears to be an endpoint document representing the
Chamberís preferred outcome of a negotiated process.
This focus is obvious if one inserts the work
ìifî before Point 1, and the word
ìthenî before Points 2-9.
We
have three principal concerns with the Chamberís
proposal. First, and most
important, Point 1 proposes that the state conduct a UAA to
lower the Spokane River DO standard. While
cleverly worded, this point represents nothing more than an
effort to shift the burden of the UAA to state taxpayers.
It
is entirely inappropriate to predicate cleanup discussions
on agreement to lower the DO water quality standard.
Moreover, the proposal to lower standards based on a
ìbiological justificationî is doomed to
failure. The existing water
quality standards are in fact biologically justified.
Ecology has provided detailed comments on drafts of the UAA
explaining the futility of this approach (these comments
were largely ignored in the final UAA document).
See Attachments 7, 8, 9.
The
proposal to shift the UAA burden to the state is simply
unacceptable.
Second,
we are concerned that several of the items offered up in the
9 Point Plan are already required by law and therefore not
negotiable. Chief among these is
the proposal to adopt AKART, to identify and implement
re-use projects and water conservation programs (points 2, 4
and 8).
Finally,
we would urge you to exercise great caution with respect to
the proposal to establish a non-profit corporation to
ìmanage and coordinateî a water quality program
(point 9). It is unlawful for
the Department of Ecology to cede any of its management
authority to an NGO (as it would be for any government
agency). Agreements for bi-state
resource management must be conducted on a
government-to-government basis that is equitable, and
includes the Tribes. We already
have experience with failed or ineffectual resource
management committees in this watershed, including the Coeur
díAlene Basin Commission, the Washington Citizens
Advisory Committee, and the SVRP Bi-State Aquifer Study (the
latter is conducting good technical work, but is incapable
of addressing pressing management issues).
We urge the state to approach the
concept of a new committee very carefully.
More process and meetings will not lead to solutions.
In
sum, the Spokane-Coeur díAlene watershed is heavily
polluted and numerous processes are now underway to clean up
and restore the basin. See
Attachment 10. The DO TMDL
effort is one among many related projects.
Citizens and government agencies are devoting an extraordinary
amount of time right now to find solutions that will benefit
the resource. We are delighted
to see your offices taking an interest in the Spokane River,
and urge your staff to thoroughly ground itself in the
history and details as you work with the Departments of
Ecology, Fish & Wildlife, Health, and other agencies to
craft community solutions for the Spokane River.
Thank
you very much for your consideration.
Yours
very truly,
Rachael
P. Osborn
Rachael
Paschal Osborn
Attorney
at Law
Coordinator,
Spokane River Project
cc:
Jay Manning, Dave Peeler, Rene-Marc Mangin, Jim Bellatty, Dave
Knight, Ken
Merrill,
Jani Gilbert
Senator Lisa Brown
Representatives
Timm Ormsby and Alex Wood
Attachments:
1.
Sierra
Club, proposed Summary Implementation Strategy for DO TMDL,
7/27/04
2.
Sierra
Club, comments on DO TMDL, 12/28/04
3.
Sierra
Club, comments on DO TMDL, 12/31/04
4.
Sierra
Club, request for public hearing on UAA rule petition,
1/10/05
5.
Sierra
Club, comments in opposition to UAA, 1/23/05
6.
Chronology
of dissolved oxygen cleanup activities
7.
Depít
of Ecology, comments on draft UAA, 5/13/04
8.
Depít
of Ecology, comments on draft UAA, 10/1/04
9.
U.S.
Envítal Protection Agency, comments on draft UAA,
August 2004
10.
Spokane-Coeur
díAlene Watershed Regional Water Issue Matrix, rev.
1/10/05
