CLEAN, FLOWING WATERS FOR THE WEST

September 20, 2010 Sara Hunt, SEA Program Section Manager (sarh461@ecy.wa.gov) Rusty Post, SEA Program (rpos461@ecy.wa.gov) Department of Ecology, Eastern Regional Office 4601 N. Monroe Spokane, WA 99205

Re: Comments on Lower Spokane River Minimum Instream Flow Recommendations Dear Ms. Hunt and Mr. Post, Thank you for the opportunity to review and provide comment on the Ecology-WDFW report “Lower Spokane River minimum instream flow recommendations” (Spokane ISF Report). These comments are submitted by the Center for Environmental Law & Policy (CELP). We are a membership-based non-profit organization with a mission to protect and restore instream flows in the rivers of Washington State and the Columbia River watershed. CELP’s Spokane River Instream Flow Project is specifically dedicated to restoring water flows to our beautiful but beleaguered home river. Establishing sufficiently protective instream flows for the Spokane River is critical for future regulatory actions and projects, both upstream and downstream. An interstate stream allocation proceeding with Idaho is faintly visible on the horizon. It is essential that the Department of Ecology utilize its flow setting authorities to ensure full protection of all of Washington’s interests in the river. Downstream, water users express interest in transferring water from upper Columbia basin watersheds to the Odessa Subarea or to Columbia River water users further downstream.1 Unprotected flows in the Spokane River are a logical target for future water demands elsewhere in the Columbia Basin.

It is essential to protect variability (i.e., high flows and low flows) – an approach that

is now embraced by the scientific community. For example, the Instream Flow Council’s Flow Variability Policy Statement provides:

Instream flow prescriptions should provide intra-annually and inter-annually variable flow patterns that mimic the natural hydrograph (magnitude, duration, timing, and rate of change) to maintain or restore processes that sustain natural riverine characteristics.2

1 MacDonnell, L.J., Protecting Local Economies: Report to the Washington State Legislature (Boulder 2008) (available on Department of Ecology Water Resources homepage).

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

BOARD OF DIRECTORS: Kathy George / Anne Johnson / Bartlett Naylor / John Osborn MD / Lauren Rasmussen

2 Locke, A., et al., Integrated Approaches to Riverine Resource Stewardship: Case Studies, Science, Law, People, and Policy, at p. 331 (Instream Flow Council 2008).

HONORARY BOARD: Billy Frank Jr. / Prof. Estella Leopold / Gov. Mike Lowry / Prof. Charles Wilkinson / Fran Wood MD 25 West Main, Suite 234, Spokane, Washington 99201 / 509-209-2899

www.celp.org

Sara Hunt & Rusty Post, Department of Ecology September 20, 2010 Re: Spokane River Instream Flow Report Page 2 This is particularly important for the few free-flowing reaches remaining in the Spokane River, where native fish species continue to live, and which require dedicated habitat protection.

Regrettably, the recommended minimum instream flows contained in the Spokane ISF Report are not sufficient to ensure protection of native fish species, flow-related water quality, and recreational and aesthetic uses of the Spokane River, uses that are protected by law.3 The ISF Report recommendations also fail to account for a number of factors that will influence actual instream flows in the future, including the large amount of inchoate water rights held by the City of Spokane and other water suppliers, ongoing water right permitting in the State of Idaho, and climate change impacts on water resources and supply. The unusual proposal to not establish a flow and instead create a reserve of 115 cfs for future water rights during the April 1 thru June 15 period may have serious impacts on the health of the river and dependent species and habitat.

I. General Concerns

1. Explain River Hydrology.

The ISF Report should contain an explanatory section describing salient features of the hydrology of the river and aquifer and the factors that influence instream flows. The system is complex and its management also complicated. Physical factors and limitations should be enumerated and assessed in the discussion of instream flows.

2. Establish a flow for the Spokane Waterfalls.

CELP is concerned about the absence of a minimum instream flow for the Spokane

waterfalls. It appears that wild fish are transitioning through the waterfalls and habitat needs are present. Moreover, aesthetic uses of water are to be protected in the instream flow setting process. The aesthetic flow conditions set forth in Avista’s 401 Certification and FERC license do not preempt flow setting by Ecology.

3. Establish flows for Upper Spokane River Reaches.

The upper Spokane River, from the stateline to Upriver Dam, and above the Upper

Falls Dam pool, provides habitat for wild trout populations. While the hydrology is complex, it is important that the agencies identify flow needs for these fish and include those flows in the instream flow regulation. Indeed, for the stateline reach, instream flow studies are complete and recommendations have been made.4

3 RCW 90.54.020(3)(a) provides that “[t]he quality of the natural environment shall be protected and, where possible, enhanced as follows: (a) Perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values.” 4 Beecher, H., et al., Memo, Spokane River Instream Flow Recommendations (2003). See Attachment 1.

Sara Hunt & Rusty Post, Department of Ecology September 20, 2010 Re: Spokane River Instream Flow Report Page 3

4. Address Climate Change.

Climate change will impact and potentially reduce flows in both the Spokane River

and the SVRP Aquifer. The Climate Impacts Group has documented substantial snowpack loss in the Northern Rockies that form the headwaters of the Spokane River, and project that losses will increase over time.5 Reduced snowpack will affect the timing, duration and intensity of run-off, and consequently the quantity of flows in the Spokane River. As the USEPA has concluded, “In addition to the typical impacts on water management, climate change introduces an additional element of uncertainty about future water resource management.”6

Climate change impacts should be considered in evaluating appropriate flows for the

river. For example, increased ambient air temperatures could affect water temperatures, leading in turn to the conclusion that higher base flows are necessary to preserve aquatic habitat. Stationarity is increasingly rejected as a basis for water management. We request that state agencies incorporate adaptation strategies in the streamflow planning process.

II. Comments on Specific Recommendations

1. October-March: 1100 cfs. This recommendation fails to take account of the natural hydrograph and flow variability in the Spokane River. 2. April-June 15: 115 cfs allocation limit.

The proposal to not establish a base flow and instead create a reserve for future water rights creates substantial problems. First, it does not account for cumulative impacts of future development and pumping from the SVRP Aquifer and the impacts of that pumping on the Spokane River during critical months. This pumping will occur as a result of Idaho’s continued issuance of water rights,7 and the City of Spokane’s development of its inchoate water rights.8

Additionally, the ISF Report indicates that during this time period observed flows

were insufficient 20% of the time to adequately protect habitat, a problem the Report identifies as a “significant limiting factor.” New allocations will exacerbate this problem. A reserve allocation of 115 cfs regardless of flow does not ensure that the natural hydrograph, and dependent aquatic species, will be safeguarded.

5 University of Washington, Climate Impacts Group, Washington State Climate Change Impacts Assessment (2009). 6 U.S. Environmental Protection Agency, http://www.epa.gov/climatechange/effects/water/ 7 Osborn, R.P., Memo, Spokane Valley Rathdrum Prairie Aquifer Idaho Water Rights Report (rev. Sept. 2009). See Attachment 2. 8 WA Department of Ecology, Chart, Spokane Inchoate Water Rights (2003). See Attachment 3.

Sara Hunt & Rusty Post, Department of Ecology September 20, 2010 Re: Spokane River Instream Flow Report Page 4

Finally, the ISF Report indicates that additional studies are needed on rainbow trout spawning sites at Meenach Springs and Riverbend, where minimum flows are required to protect incubation. It is unclear why state agencies would agree to a future “allocation” while acknowledging that information is lacking to determine what minimum flow is actually required for spawning and incubation of rainbow trout. It is premature for the state to opt for an allocation-based limit. 3. June 16-September 30: 850 cfs.

This recommended flow fails to protect high flows when available and is devoid of consideration of other protected uses, particularly navigation and recreational use.

The Whitewater Paddling Instream Flow Assessment Study Report (Louis Berger

2006), conducted as part of the Avista relicensing process, concludes that establishing a single optimum flow for the Lower Spokane is problematic, but indicates a range from 1350 cfs to 2558 cfs is appropriate. A minimum 1350 cfs flow would allow full enjoyment by all river enthusiasts and protect basic navigation on the Spokane River. Importantly, the Department of Fish & Wildlife has indicated that 1350 cfs will not harm fisheries in the Spokane River. While fisheries considerations are often the most critical factor in instream flow setting, there is precedent for establishing flows based on other beneficial uses of rivers. Given the substantial recreational use of the Spokane River, we strongly urge the Department of Ecology to undertake an evaluation of recreational flow needs, and to revise its recommendations to ensure protection of this statutorily protected beneficial use.

CELP recommends a minimum instream flow of 1350 cfs for the time period June 16-

September 30. This instream flow will accommodate navigation, recreation, and protection of aquatic habitat, and may also achieve aesthetic and water quality benefits. We recommend this number be utilized as an “exceedance” flow, that is, designed to protect flows between 850 and 1350 cfs when water is available and hence to protect the natural hydrograph of the river. We agree with the concept of 850 cfs as a “hard target” flow, i.e., a minimum flow that must be available in the river all summer every year, to protect native fish below Monroe Street dam.

4. Spokane Gage Control Point:

We generally agree that the “at Spokane” gage is an appropriate control point measure instream flows. However, consistent with our recommendation that minimum flows be set in the upper reaches of the Spokane River, we encourage you to establish and maintain a gage in the Spokane Valley to ensure monitoring and protection of those flows. Further, because of hydraulic continuity between the SVRP Aquifer and the Little Spokane River, the instream flow rule should also acknowledge that the Dartford gage on the Little Spokane serves as a control point for upgradient pumping.

While the ISF Report is directed toward “lower” Spokane River, in fact this rule will

affect pumping throughout the Spokane watershed. We would encourage you to embrace the idea that, after 11 years of planning for integrated ground and surface water management in WRIAs 55 and 57, it is appropriate to appropriately label (and adopt!) the rule that will manage water resources in these watersheds.

Again, we thank you for the opportunity to provide comments on the state agency recommendations for instream flows in the Spokane River. Please feel free to contact us if you have any questions or would like to discuss our comments. We look forward to

Sara Hunt & Rusty Post, Department of Ecology September 20, 2010 Re: Spokane River Instream Flow Report Page 5 continuing to work with you and other agency staff as we all move toward the common goal of creating legally and scientifically sound protections for Spokane’s most visible and important natural resource, the Spokane River. Yours very truly,

Rachael Paschal Osborn Arielle Anderson Attachments

Spokane Valley-Rathdrum Prairie (SVRP) Aquifer Idaho Water Rights Reporta

A summary of Basin 95 water permits issued by Idaho Department of Water Resources

September 2001 to June 30, 2009 (9.1.09)

Total number of SVRP groundwater permits issued by IDWR between 9/1/01 and 6/30/09: 179

TOTAL QUANTITIES:b 87.81 cubic feet/second (cfs); 56.75 million gallons per day

By way of comparison, the two Rathdrum power plant applications, denied in 2002, requested a combined 21.62 cfs (year-round), for a total of 13.97 million gallons/day or 5.1 billion gallons/year. In 2001, it was estimated that Idaho had issued 645 cfs (annual quantity) of water rights from the SVRP Aquifer.c In 2005, Spokane County estimated that Washington has issued 614 cfs (peak summer quantity) in water rights from the SVRP Aquifer.d Washington has not issued new SVRP groundwater rights since the mid-1990s. The U.S. Geological Survey estimates that water withdrawals from the SVRP Aquifer average 317 cfs per year, and peak at between 725-800 cfs during the late summer period.e Summertime low flows in the Spokane River, which is fed by the SVRP Aquifer, have dropped by nearly 1,000 cfs in the last 118 years (as measured at the Monroe Street gage).f

Priority Date

Water Right Permit Holder Quantity (Q.) (cubic ft/sec)

Usage Periodg

6.1.09 Donner 0.06 Irr/YR 5.21.09 Albert 0.16 Irr/SW 5.20.09 Grief 0.06 Irr 5.20.09 McIntosh 0.2 Comm/FP 5.13.09 Debernardi 0.03 Irr 5.7.09 West Seasons Acres Homes Assn 0.2 Irr/YR 5.5.09 Schlabs Family Trust 0.2 Irr/YR 5.1.09 Bollen, Hallaren, et al. 0.19 Irr/YR 4.29.09 Pitman 0.09 Irr 4.28.09 Saasman 0.16 Irr/YR 4.24.09 CDS Stoneridge Utilities 2.22 Muni 4.21.09 Stateline Stadium Speedway 0.15 Irr/Comm 4.20.09 Westslope Properties 0.16 Irr/YR 4.14.09 Graham 0.16 Irr/YR 3.30.09 Odell 0.15 Irr 3.30.09 Mauck 0.09 Irr/YR 3.24.09 Frangione 0.15 Irr/SW/YR 3.17.09 Kastning 0.2 Irr/YR 2.24.09 Sabo Well Water Assn 0.1 Irr/YR 2.2.09 Rollins 0.03 Irr 1.27.09 Bel, Buske, Roberts & Schuler 0.16 YR 1.21.09 Red Fir Water Assn 0.2 Irr/YR 12.8.08 Southview Terrace Inc. 0.46 Irr/YR 12.8.08 Beach Robertson 0.38 Irr/YR 11.14.08 Wilson 0.04 YR 10.29.08 Near 0.04 YR

Idaho SVRP Basin 95 Water Rights Sept 2009 2001- 2009 Page 2

10.29.08 Bouttu 0.04 YR 10.20.08 McKee 0.2 Irr/SW 9.24.08 Coeur d’Alene Lake Estates Water Assn 0.2 YR Muni 9.17.08 Dedmon, Grubb 0.2 Comm/YR 9.4.08 Lindsay Lane Water Users Assn 0.2 Irr/YR 8.8.08 Morss 0.15 Irr/ST 8.25.08 Greenferry Water & Sewer Dist. 0.8 YR Muni 7.15.08 McFadden 0.2 Irr/SW/YR 6.30.08 Upper Columbia Corporation 0.2 YR 6.30.08 Upper Columbia Corporation 0.06 Irr/Ind 6.17.08 Bauer 0.62 Irr/SW 6.13.08 North Kootenai Water District 0.95 YR 6.4.08 Prairie Avenue Mini-Storage 0.07 Irr/YR 6.3.08 Dahlman 0.06 Irr/YR 5.20.08 Spirit Lake Industrial Park 0.1 YR Muni 5.5.08 Kootenai Medical Center 2.0 Heat/Cool 4.11.08 Garwood Water Coop 2.0 YR Muni 4.4.08 Hagadone Hospitality 0.04 Comm. 3.14.08 Silverwood 1.7 Comm. Seas. 3.10.08 Anderson .19 Irr/YR 3.7.08 Blossom View Estates .2 YR Muni 2.19.08 Salvation Army Kroc Center 1.6 Heat/Cool 1.15.08 Tobin .11 Irr/YR 12.13.07 Turner .08 YR 10.15.07 Orser .06 Irr/YR 10.15.07 Rhondda & Lawrence Gee 0.08 Irr/YR 9.20.07 Titsch 0.2 Irr/SW/YR 9.20.07 Kiefer Trust 0.19 Irr/SW/YR 9.18.07 Bloomsburg 0.2 Irr/SW/YR 8.31.07 Plass 0.3 Irr/SW/YR 8.27.07 Gerbitz 0.04 YR 8.23.07 North Ramsey Ohio Match Water Assn. 0.2 Irr/YR 8.6.07 Engle 0.11 Comm/YR 8.2.07 Edgewood LLC 0.2 YR 6.5.07 Kootenai Medical Center 0.83 Irr/Comm 5.23.07 Kootenai County Solid Waste 0.22 Irr/YR 4.30.07 Villagomez 0.2 Irr/SW/YR 4.17.07 David, Gibson 0.18 Irr/SW 4.17.07 Fox Court Homes Assn. 0.18 Irr/SW/YR 3.27.07 Northern Water LLC 0.75 FP/YR 3.5.07 Riley 0.1 Comm 2.27.07 West Canfields Assn. 0.14 YR 12.4.06 Waterview Water Assn. Inc. 0.13 YR 11.21.06 Mejie 0.07 Irr/YR 10.20.06 Big Sky Estates Assn. Inc. 1.67 Irr.

Idaho SVRP Basin 95 Water Rights Sept 2009 2001- 2009 Page 3

10.20.06 River House Development Inc. 0.78 Ind. 10.10.06 Johnson Meadows Estates Water Assn. 0.11 YR 9.14.06 Silver Leaf Ranch Homes 0.3 YR 8.14.06 Aspen Creek Water Assn. 0.07 SW/YR 8.14.06 Aspen Creek Water Assn. 0.24 YR 7.11.06 Discovery CDA Investors LLC 0.56 Ind 7.5.06 Morgan 0.04 Irr/YR 6.19.06 CdA Fiber Fuels 0.06 Irr/YR 5.23.06 Talley 0.3 Irr/YR 4.13.06 Schreibeis 0.08 Irr/YR 4.3.06 Gray 0.2 YR 4.3.06 Rettstatt 0.02 YR 3.24.06 Lindsay 0.02 YR 3.1.06 Morris 0.2 Irr/YR 1.10.06 Reynolds 0.2 Irr/YR 12.27.05 Fernan Estates 0.19 YR 12.19.05 Shelter Peck LLC .09 YR 11.3.05 Andrews 0.2 Irr 10.31.05 The Lodges at White Bear Homes 0.2 YR 10.12.05 Plechner 0.02 YR 10.12.05 Ridgeview Development LLC 0.2 YR 9.16.05 Hagadone Hospitality .11 Irr 9.12.05 Larson 0.05 YR 9.6.05 Woodland Shores Water & Sewer 0.26 YR 9.2.05 Big Rock Timber & Dev. 0.5 YR 8.19.05 Rolphe 0.08 YR 8.12.05 Roberge 0.02 YR 7.14.05 Chateau de Loire Water Assn. 0.3 YR 7.8.05 Rolphe 0.01 YR 6.24.05 Best Hills Ranch 0.04 YR 6.15.05 Northern Water LLC 0.5 YR (& FP) 5.6.05 Trails End Property Assn. 0.17 YR 4.26.05 Turney 0.16 Irr./YR 3.21.05 Duns & Roses Ranch LLC 0.27 Irr/YR 3.15.05 Sawyer 0.04 YR 3.9.05 Hayden North LLC 0.13 YR 1.24.05 The Headlands Development 0.5 YR 1.14.05 Milestone Investments 0.2 YR 1.11.05 Mica View Estates 0.2 Irr/YR 12.29.04 Hedberg 0.07 Irr/YR 12.28.04 Scarcello 1.0 Irr/YR 12.9.04 Rockford Bay Investments 0.44 Irr/YR 11.4.04 Post Falls Ponderosa Water 0.2 Irr/YR 10.25.04 Blackrock Utilities 0.25 YR 8.18.04 Lone Mountain Water Assn 0.2 YR

Idaho SVRP Basin 95 Water Rights Sept 2009 2001- 2009 Page 4

7.30.04 Maitre 0.05 Irr/YR 7.21.04 Ragan 0.06 Irr/YR 5.21.04 Westview Property Owners Assn 1.0 Irr/YR 5.17.04 Coeur d’Alene School Dist 1.6 YR 5.5.04 Green Ferry Water & Sewer 1.0 YR 3.23.04 Upper Twin Lakes Water Co. 0.2 YR 2.17.04 Biopol Laboratory 0.11 Irr 1.22.04 North Kootenai Water District 2.51 YR 1.16.04 Hughes 2.0 Irr 10.31.03 Tufford 0.04 YR 10.28.03 Hutchins 0.11 Irr/YR 10.27.03 Gross 0.02 YR 10.8.03 Pilot Rock Development Assn. 0.2 YR 9.26.03 Roman 1.0 Irr/YR 8.18.03 Hauser Lake Heights Homes LLC 0.45 Irr/YR 7.18.03 Daeland Inc. 0.9 Irr 7.11.03 Arestad 0.2 Irr/YR 6.30.03 Kastning 0.03 Irr 6.10.03 Lewis 0.07 Irr/YR 5.28.03 Stansbury 0.2 Irr 5.16.03 Coffman 0.04 Irr/YR 5.13.03 Bronson 0.53 Irr 4.25.03 Armstrong 1.68 Irr 3.31.03 City of Post Falls 3.75 YR/Irr/FP 3.4.03 Miller 0.2 Irr/YR 3.3.03 North Kootenai Water Dist. 8.83 YR 2.4.03 N. Idaho Fair & Rodeo 0.33 Irr 12.27.02 City of Coeur d’Alene 0.4 Irr 12.27.02 City of Coeur d’Alene 0.4 Irr 11.4.02 Knudsen 0.02 YR 10.11.02 City of Huetter 0.55 YR 9.25.02 Andrews 0.2 Irr/YR 9.23.02 Marvin Gardens 0.32 Irr/YR 9.6.02 Diagonal Road Water Dist. No. 1 0.13 Irr/YR 9.6.02 Anderson 0.2 Irr/YR 9.5.02 Herman/Tritten 0.02 Irr/YR 8.30.02 Singer 1.4 Irr 8.27.02 Kiefer 0.04 Irr/YR 8.19.02 Singer 0.7 Irr 8.13.02 Ragan 0.04 Irr/YR 8.13.02 Singer 2.0 Irr 8.12.02 McGuire Estates Water Users Assn. 0.17 YR 7.25.02 Collins 0.04 Irr/SW/YR 7.23.02 Erickson 0.2 Irr/YR 7.17.02 Knudsen 0.02 YR

Idaho SVRP Basin 95 Water Rights Sept 2009 2001- 2009 Page 5

7.2.02 City of Post Falls 5.79 YR 7.2.02 City of Post Falls 3.0 YR 7.1.02 McKeown 0.02 Irr/YR 6.11.02 Kiefer 0.04 YR 4.30.02 Sylte Development LLC 0.95 YR 4.24.02 U.S. Dep’t of Interior 0.11 Irr 4.11.02 Post Falls Baptist 0.2 Irr/YR 3.28.02 Bar Circle S Water Inc. 3.3 YR 3.19.02 Brown 0.06 Irr/YR 3.16.02 Cavalin 0.14 Irr/YR 3.6.02 Pineview Estates Water Dist. 1.11 YR 2.7.02 Hauser Lake Water Assn. 2. 25 YR 2.6.02 Morris 0.19 Irr 1.4.02 Tripp 0.18 Irr 11.13.01 Waterford Estates 1.0 YR 11.15.01 Baker 0.12 Irr/YR 9.25.01 DMS Water Assn. 0.06 Irr/SW/YR 9.12.01 Four Winds Water Assn. 0.04 YR

a Prepared by Rachael Paschal Osborn on behalf of Sierra Club’s Spokane River Project and Center for Environmental Law & Policy. For more information, 509.209.2899 or rosborn@celp.org. b All information derived from the Idaho Department of Water Resources Water Rights Database for IDWR Basin 95, accessible at http://www.idwr.state.id.us/apps/ExtSearch/SearchWRAJ.asp. This data set does not include water rights from the upper Rathdrum Prairie Aquifer (Basin 95, above Chilco channel), domestic use (permit-exempt) wells, fire protection water permits, or surface water permits. Annual quantities represent straight-line calculation of 7.48 gallons per second x time. c Chapman, Sherl, et al., Additional Information Requirements Water Resource Analysis of the Rathdrum Prairie Aquifer Relating to Application to Appropriate Water No. 95-9069, at p.5 and Table 2 (ERO Resources, Nov. 15, 2001). This figure includes all SVRP (IDWR Basin 95) water rights registered on the IDWR database plus an estimated 35 cfs of domestic use. d Spokane County, et al., WRIA 55/57 Middle and Little Spokane River Watershed Management Plan, p.55, Table 3.E (June 2005). e U.S. Geological Survey, Ground-Water Flow Model for the SVRP Aquifer, Scientific Investigations Report 2007-5044 (May 2007). f U.S. Geological Survey, Daily Streamflow website, Gage No. USGS 12422500, Spokane River at Spokane, Washington. See http://nwis.waterdata.usgs.gov/nwis/discharge/?site_no=12422500. g Usage period is presumed to be seasonal for irrigation rights and year-round for stockwater, commercial, domestic and municipal rights.

City of Spokane Water Use vs Rights in Acre-feet per year

70620, 48%77830, 52%

Used

Inchoate(unused)

Use data from Spokane's Water System Comprehensive Plan Annual Average Used over the 1993 - 1998 period

The City's 'paper rights' total 148,450 acre-feet per year

Chart prepared & distributed by WA Dep’t of Ecology, Water Resources Program (2003)