At a critical juncture in the battles over the Spokane River, the Center’s lead water attorney, Rick Eichstaedt speaks candidly about how we got here, and what lies ahead.
Time flies when you’re trying to fight the good fight to save Spokane’s signature river. So what did the past four years of wrangling over the law, technology, and the water itself get us? Those were the questions that CFJ’s Communication’s Director, Tim Connor, put to the Center’s lead Spokane River attorney Rick Eichstaedt in early December. Connor worked for Sierra Club on Spokane River issues in 2005, the year the so-called Spokane River Collaboration got underway. Tim’s related commentary on Spokane County and its relationship with contracting giant CH2M Hill can be read here.
TC: I want to go back to early 2005 which is when I and I think many others started paying a lot of attention to the Spokane River dissolved oxygen controversy. There was a big meeting out at the airport with then-new commissioner Todd Mielke, Tom Eaton (U.S. EPA Region X), Dave Peeler (Washington Department of Ecology headquarters). The dischargers and the state had reached something of a stand-off, where the dischargers had filed a petition for Use Attainability Analysis which, in layman terms, is an effort to try to change water quality standards, to take some of the pressure off river dischargers. So we came out of that with what became the Spokane River TMDL Collaboration.
Rick: One just quick comment. I don’t know if you realize it, but I think that was within my first month here at the Center.
TC: It was a benchmark in this debate because instead of going to court, or into a legal proceeding, the decision was to go into a dialog. And you had people like the Chamber of Commerce, Todd Mielke and the state stepping forward to say let’s go do that. And so we and Sierra Club engaged in that discussion. During that time, EPA decided and Ecology decided to essentially solve the problem by gaming the numbers on the Spokane River. And so we came out of the Spokane River Collaboration with what looked to be to the public a sense that maybe something had been agreed upon that would work. And yet this other issue remained and got resolved earlier this fall with EPA said, no, we made a mistake, Sierra Club and Center for Justice are right, this is not the way we should be doing setting water quality standards and enforcing compliance. So, the immediate question is where are we today, as opposed to where we were four years ago, and what have we gotten for those four years?
Rick: Let me answer the question of what have we got before I answer the question where are we today. Because I think the one thing we got is a better understanding of what some of the options are. I mean, even we know–the Center and Sierra Club–what some of the better technological options are, like how much might we be able to squeeze out of other sources of phosphorous, such as non-point sources [pollution sources like agricultural run-off, that lack an obvious discharge point into the river]. So, I think we know more about the river and some of our options moving forward than we did four years ago when that process started.
“To what extent was the Spokane River TMDL Collaboration an exercise in avoiding the hard decisions that need to be made? Rick: I think it was almost exclusively an exercise in avoiding the hard decisions.”
Where we are today is a good question. Some of the dischargers have characterized this as we’re back to square one. I don’t think we’re back to square one. I think we’re back to having to revisit the TMDL and the permits. I think a lot of the elements that came out of that TMDL process, like the idea of delta* elimination, will somehow remain. I think the difference is that this will be dealt with on a watershed scale where we include both the Idaho and Washington dischargers. And I think, regardless of our 401 appeal, [see, Same Dam Problems] Avista is going to be included in the equation. So, what’s going to need to occur is get answers to the questions of what can Avista do, how effective might that be, how much of the responsibility are we going to pin on them, and what does that mean for the other dischargers, including Spokane County, which wants to get a new pipe in the river. Then we’ll have to plug it all into the model and see if it results in our meeting water quality standards. I think one thing we’re going to see is we’re not going to see the type of collaboration that we did in that four year process. I don’t know that I’m necessarily uncomfortable with that, but I know the dischargers are extremely uncomfortable that this is going to occur basically by EPA. There’s very little funding because the state and EPA have spent so much money on this already. So we’re going to need to be very thoughtful about what do we think everybody can do, what the law requires, model that, and see if it gets us there.
*In the Spokane River TMDL Collaboration the term “delta” represented the amount of phosphorous reductions that would need to be eliminated to attain compliance with water quality standards after all known discharges of phosphorous had been reduced(by elimination or waste water treatment) to the maximum extent feasible.
TC: To what extent was the Spokane River TMDL Collaboration an exercise in avoiding the hard decisions that need to be made?
Rick: I think it was almost exclusively an exercise in avoiding the hard decisions. Even at the end of the day, the numbers that came out of the 2004 TMDL (co-authored by former Ecology scientist Ken Merrill) those remained [at end of the TMDL Collaboration.] We’re still talking about getting to near ten micrograms per liter (10 ug/l phosphorous) from the point sources and we’re still talking about very vigorous efforts at non-point source control.
TC: How much do you think the calculation that was made back in 2004, 2005, with the UAA petition and so forth, was predicated on knowing that, after all, this is the Bush Administration and knowing that they controlled EPA, EPA would give river dischargers every benefit of every doubt?
Rick: I don’t know. I don’t know if it was the equation on the federal side, or the state side. Idaho, certainly, you know, is not going to push hard for EPA or Ecology to protect Long Lake. It’s not their interest. They’re going to make sure those dischargers are meeting the water quality standards in Idaho. Idaho’s not going to oppose a UAA. But I think, second, it’s my understanding there were pretty high level discussions about the UAA petition, about collaboration, we know that the chamber and others met with the Governor’s office and certainly other local elected officials and representatives met with folks in Ecology and the Governor’s office. So I think there was a sense that something was going to give. That those numbers in that 2004 TMDL wouldn’t stand. And either the UAA would change them, that a protracted legal battle would change them, or this collaboration would somehow reduce their responsibility.
TC: Let me take you down the list. How do you assess the performance of EPA, Ecology, the City and the County over the last four years including their involvement and attitudes in the Spokane River Collaboration, starting with EPA?
Rick: I think it was a mistake for EPA to leave the collaboration and decide that they were going to establish their own permitting scheme. So that I think got us to where we are today. I think we’d be in a different place today if EPA had stuck to it.
TC: Given how strongly Tom Eaton had defended the 2004 TMDL at that meeting at the Spokane Airport (February 2005) is it still a bit of a surprise and a mystery that they stepped out of the process after coming to the table and saying they would be a partner in it? Is there any explanation you can offer about why that happened, from your perspective?
Rick: It is a mystery. I don’t think anybody completely understands why. One of the explanations we heard from EPA staff was that EPA itself was uncertain about where this collaboration was going to go. They had some legal concerns about whether they could require dischargers in Idaho to be part of a two-state, delta elimination process. So there was some legal uncertainty. Those dischargers had indicated–and again this is what we were hearing from EPA staff–they would commit to fifty (50 ug/l) and they (EPA) viewed that as a significant reduction, so they decided to move forward.
TC: Is it fair to say this? Leaving politics and ideology aside, if you were just going to look at this from Idaho’s perspective, which is that, ‘you know, the problem is on the Washington side. Sure, we put phosphorous and other nutrients in the river through our waste water treatment plants, but really the problem is in Washington because that’s where the dams are that are creating the reservoirs where the nutrients are causing the dissolved oxygen problem. This is in a Washington river and this is a Washington-based utility that is benefiting from this. Wasn’t there an equity issue as to why Idaho should have to do so much to solve a problem that was created by Washington-based interests for the benefit of Washington-based corporations.
Rick: One of the things we consistently heard from (EPA’s) Tom Eaton was that Washington can’t set standards for Idaho. Which is a true legal statement. It kind of avoids the issue, though, that EPA in issuing those (Idaho) permits, does have to meet downstream water quality standards. As far as whether there are issues of equity, I mean, we didn’t hear that. I mean, I think that’s fair, that probably folks consider that. You’re right, it’s a dam in Washington that causes it but that power also serves Idaho. Avista has a very large service area in two states. And Long Lake dam is the biggest energy producer on the Spokane River.
TC: Let’s look at Ecology next. Sierra Club’s Rachael Paschal Osborn has pointed out this irony: Here you have a Washington Governor and a Washington Ecology Director who, in national politics, were major players in expanding the rights of states to use the 401 certification process to improve state waterways.
Rick: Exactly.
TC: They were clearly in charge of this process, and yet Ecology under Gregoire and Jay Manning winds up essentially muzzling its top scientists, Ken Merrill who was responsible for much of the work on the 2004 TMDL. And for the circumstances that led Merrill’s successor, Drea Traeumer, to also conclude that she could not put her signature on a TMDL that was based on deeply flawed science. To a large extent Merrill and Drea Traeumer have been vindicated. And Ecology, even though
EPA took the bullet of criticism for this, Ecology clearly readjusted its program to account for this math, even though some of its senior managers had directly criticized it when they heard it was being proposed. Given that, and given where we are now, and given that the pot has run dry in terms of the money that was available in 2004, how do you assess Ecology’s performance?
Rick: Clearly, they did not do a good enough job protecting Washington’s water quality standards. You know, we met with (Ecology Director) Jay Manning and asked him to oppose EPA’s permitting strategy, which was this two plus two equals two approach. So we urged him, ‘hey, you’re ignoring our state standards, we need to do a better job if we want to succeed in making sure this is addressed.’ And the message we heard was, ‘this is going to be good, this is going to be better.’ We talked to EPA and we talked to Ecology, in particular, and this is what we heard over and again, that this is going to be better, this is going to get us closer. But what we never heard from Ecology that this was going to meet water quality standards in a way that has a logical and legal interpretation of the state standards. So, I think they dropped the ball in making sure that our state water quality standards were protected. Again, EPA screwed up by walking away from the process and doing its own permitting scheme. That helped get us to where we were. But I think, equally, the State of Washington was responsible for not pushing back and saying, ‘wait a minute, this doesn’t make sense.’
TC: Here are two mysteries. They are for me and I suspect they are for a lot of people with regard to Ecology. One is, it’s one thing to go into a collaboration to work on the so-called delta elimination program, that you could agree on what you could do with technology, and you could look at what was left in terms of the wedge in the pie that you wouldn’t be able to get to with advanced sewage treatment technology, and work on that number, and have a strategy for working on that remaining wedge, that delta. Conceptually, that’s fine. And if you’re going to have a collaboration, that’s fine. But to then go off and essentially endorse, over internal warnings, the funky math that EPA was proposing to use as a boundary condition for the Idaho dischargers, I just don’t understand, and I suspect a lot of other people don’t understand the motivation for that. Why do that? How does that help solve the problem and avoid litigation that could come from Sierra Club or anybody else who would have a grounds to litigate?
Rick: That’s a very good question. I wish I knew that answer. Maybe it was partially driven by a desire just to get this done and avoid litigation with the dischargers. Obviously, Washington is dealing with EPA on other issues as well. Maybe this was not the issue they wanted to go to the mat on, the Spokane River. There’s issues on Puget Sound, there’s issues on the Snake River, there’s other non-water issues. Maybe it was motivated by where they want to spend their political capital. Maybe EPA said ‘no, that this is the way we’re going to do it,’ and Washington would have been left in a place where it would have had to litigate.
TC: Let me turn to the other mystery. When I spoke with Drea Traeumer recently, the question came up of why the state did not get a very exacting agreement out of Avista in the 401 certification. This proverbial chance of a lifetime, chance of a generation…
Rick: Probably, once every thirty to fifty years, or forty years realistically here.
TC: But a rare chance to use the 401 certification in tandem with the dam relicensing process to account for Avista’s contribution to the dissolved oxygen problem, to ensure that there was either a financial or technological firm commitment. She told me yesterday that when she raised this question and when others on the Ecology staff raised this question, they were constantly assured that is how Avista’s contribution and how it was going to be measured and enforced with a compliance agreement, that it was going to be handled through the 401 process. But that didn’t happen. How do you make sense out of what happened there?
Rick: (Chuckles) It is a mystery. Because they consistently said they were going to deal with it through the 401. Even some of the comments we’ve seen from Inland Empire Paper and the City of Spokane say, ‘wait a minute, you said you were going to deal with this through the 401 and now you’re punting it two years out, and for Avista to determine.’ The best explanation I heard was that Ecology staff had not specifically in the collaborative relicensing process, the ALP, asked for specific information about Avista’s responsibility. They didn’t feel like they could require Avista to do those studies up front, because of some good faith process, and so they deferred it until later. That’s not a very good explanation, and I don’t really think that it holds water. The answer, again, is I think it’s one of those mysteries to everybody, particularly because they said they were going to deal with it. They didn’t. They left it to Avista to figure out.
“You know, we met with (Ecology Director) Jay Manning and asked him to oppose EPA’s permitting strategy, which was this two plus two equals two approach. So we urged him, ‘hey, you’re ignoring our state standards, we need to do a better job if we want to succeed in making sure this is addressed.’ And the message we heard was, ‘this is going to be good, this is going to be better.’ We talked to EPA and we talked to Ecology, in particular, and this is what we heard over and again, that this is going to be better, this is going to get us closer. But what we never heard from Ecology that this was going to meet water quality standards in a way that has a logical and legal interpretation of the state standards.”
TC: In that light, assess what Inland Empire Paper is saying which, as I understand it, is saying the same thing we are saying.
Rick: And they joined the lawsuit with us.
TC: And correct me if I’m wrong here, because as I read it, Inland Empire Paper is saying that you, Ecology, have acknowledged, technically, that Avista has a contribution here and you’ve told us that it would be accounted for in the 401. And it wasn’t. And because you did not account for Avista’s contribution in the 401 it’s unfair for you to be tightening the screws on river dischargers beyond what we can do technologically without addressing Avista’s contribution.
Rick: Right. You’ve got another private corporation who’s using the river and impacting the river who, thus far, has been off the hook. And basically the 401 leaves it to them to tell Ecology what their contribution is. There’s an issue here. You mentioned earlier on the Washington-Idaho question that there’s an issue of equity. I think there’s a bigger issue of equity here, where you’ve got non-point sources at the table, you’ve got point sources at the table, and point sources at the table that are being asked to do things that maybe are technologically difficult, and then a dam owner who’s essentially off the hook–particularly, after promises were made to everybody else that they would be. And, you know, I just have to say we were the only voice asking for Avista to be included in the TMDL process until, I think, the end of the collaboration, when people began to realize that this is still going to be very hard.
TC: The City of Spokane. They are obviously the major contributor to this problem in terms of the point discharge of phosphorous and other nutrients. Where have they come in the last four to five years on this?
Rick: I think they’ve come farther, particularly since there’s been some leadership changes. I think the city is still very much protecting its interests. But a couple of good things are one, the city has chimed in on the 401 issue. They didn’t appeal but they wrote letters supporting the concept of including Avista. Second, is they are on track to do a fairly large scale of pilot testing that will be implemented, I believe, sometime next year. I think it’s twelve or eighteen months and they’re looking at a bunch of different technologies to look at what they can do. And third, it’s my understanding they’ve been doing some reservoir monitoring to get more data to better understand the problems. They’re certainly not perfect. You know, river health isn’t just about phosphorous and even dissolved oxygen is not just about phosphorous. We’ve heard the city oppose healthy instream flows for the river. You know, if we decrease flows that’s going to have an impact on dissolved oxygen levels. One of the biggest reasons we have dissolved oxygen problems in Long Lake is because we’ve turned the river into a slow-moving reservoir. The slower that those nutrients flow through the reservoir, the more they feed algae, so if we decrease the flow it’s going to make the problem worse. We need to not only reduce phosphorous, and the city is looking at new technologies to do this, but we need to protect flows. Not just for fish because this is an important red band trout area we’re talking about, just downstream of Monroe Street dam, but to make sure we protect those flows through Long Lake.
TC: You say they’ve been reluctant to support higher flows. Why?
Rick: Well, they’ve been opposed. The Department of Fish and Wildlife and Ecology have proposed a minimum flow downstream of Monroe of 850 cubic feet per second and the city has said no, that should be reduced so that we can essentially allow more pumping of groundwater.
TC: So you see them doing that to protect…
Rick: Their future water rights allocation.
TC: In other words, if there’s more flow in the river ….
Rick: There’s less new allocation of water rights.
TC: Let’s get to the county. The county looks to get to the table in about three ways that I can see. One is, we’re in a different spot because we need a permit for a new waste water treatment plant. So, the county really has been a ramrod to get this done so it can get its permit and go on about its business. Two, you’ve got the then-new commissioner, Todd Mielke, out taking a very active role, state-wide trying to get a ban on phosphorous in dishwasher soap, taking a stance that clearly aligns with where we are on that issue. But thirdly you have the issue that is raised in the new Sierra Club letter where the county seems to have gotten itself locked into a sewage treatment technology that increasingly looks like it’s not going to get them a [phosphorous reduction] number that is going to allow them to get a permit to discharge into the river. So, these three things, how do you add them all up?
“You’ve got a county that, in a lot of ways, is acting like an urban entity, like a city, in the way it wants to expand its urban growth area and expand its tax base, so this momentum is largely driven by the county and their need, or perceived need, to get a pipe in the river. And that’s led to a lot of the problems that you’ve outlined. It baffles us that they are moving toward a technology that is more expensive and not as effective.”
Rick: I think the majority of the energy to, one, to get this done, two the collaboration, and three the UAA, is being driven by the county. You’ve got an over-allocated river [already being asked to absorb too much phosphorous]. You’ve got a county that, in a lot of ways, is acting like an urban entity, like a city, in the way it wants to expand its urban growth area and expand its tax base, so this momentum is largely driven by the county and their need, or perceived need, to get a pipe in the river. And that’s led to a lot of the problems that you’ve outlined. It baffles us that they are moving toward a technology that is more expensive and not as effective. Now, I think it’s very telling that the rejected bidder, Veolia realized MBR [membrane bioreactor technology] was not the way to go. [Read Veolia's November 18, 2008 letter]
TC: The county seemed to have decided fairly early on that MBR was the way to go.
Rick: Yeah. For five years or so, at least, the county has been wed to this idea of MBR, and despite more and more information coming out that indicates MBR is not the best technology they continue to desire to employ that technology. So, the technology issue is baffling and what’s even more disturbing is that there’s this drive to sign this contract [with CH2M Hill] employing this technology before we know what their final discharge limits are, putting at risk a significant amount of taxpayer resources. Bruce Rawls was asked by one of the county commissioners at a recent public hearing, ‘what happens if we can’t get our permit?’ And one of the options he indicated is that we could mothball this plant, that we could mothball a 150 million wastewater treatment plant.
TC: Is it simplistic to say the county seems to have been playing a game of chicken with the regulators and anybody else, saying ‘despite what you say about the law and the permitting requirements, there’s so much at stake for our economic development, there’s no way you’re not giving us a permit.’
Rick: That may be part of their calculus. I hope it’s not.
TC: But this is not news. If one goes back in the paper trail and look at issues like those Sierra Club raised…
Rick: These are all issues we’ve raised for the past four years.
TC: The money from the state revolving fund is some of the news in this letter, the fact that the state–despite not having assurance from the county that the technology that the county was pursuing for the plant was going to result in a discharge that could meet water quality standards. Nevertheless, the state agreed to release up to 8.5 million dollars to the county to address the shortcomings in its plan. In retrospect, was that a wise move by the state, to release those funds?
Rick: As for the wisdom of it, if they had better supervision of that to make sure there was an honest look at other alternatives. One of the things the [Sierra Club] letter talks about at the end was, ‘is this cost-effective, did they do a cost benefit analysis to determine what these different technologies can achieve and how are they going to cost us? That’s the kind of thing that should have occurred. And it didn’t. And if that 8.5 million dollars had been used to really take a thorough look at these kind of alternatives, I think not only would the county have benefitted from it, but I think this region could have benefited from it.
TC: My recollection in looking at the paper trial is that the alternatives that made the cut were all MBR alternatives.
Rick: Oh yeah, exactly.
TC: So, it seems to me, that if you’re going to give them up to 8.5 million, you should get some technologies back on the table.
Rick: You know, it’s interesting, the City of New York, they get their water from a watershed in upstate New York, and it’s all pumped down. They are concerned with all these dischargers, all these little communities, that are impacting the quality of New York’s drinking water. So they’ve been spending money, and all these communities in update New York have been upgrading their technology to protect New York’s drinking water. Back in the 1990s, EPA was encouraging these communities to adopt MBR. The City of New York said, ‘maybe that’s not the right way to go.’ And they spent a bunch of money to compare things like dual sand with MBR. And New York City’s conclusion, in conjunction with EPA, is that other technologies are more cost effective. [See attached chart.]
TC: So, December 2008. Looking four years forward instead of back, how would you like the world to look on these issues in December 2012. What would you like to see having been decided?
Rick: (Big sigh) We’ve got a TMDL, that’s legal, that includes Avista, that allocates Avista’s responsibility and gets them on track to looking at what they can do. We’ve got draft permits that are going to implement final treatment technologies within ten years of their issuance, that fairly allocate the responsibility between the two states. And that folks are focused on how do we get there, what can we do, what kind of technologies can we implement, as opposed to fighting the water quality standard. You know, if we go down the track of the Use Attainability Analysis, in four years we’ll be exactly where we are today, or in the courtroom. If we focus on acceptance of ‘we know what the number is we have to achieve, how do we get there? let’s include everybody, Avista, let’s include both states, let’s focus on technologies,’ I think we’ll be on the road to success. And I think an important part of it is, by including Avista, there may be room in the river for the county, I don’t know. That’s an exercise that we need to have the scientists and the modelers take a look at.
TC: We won’t know that until we have an allocation for Avista.
Rick: Right. And the other thing though, if the county doesn’t have a number, let’s make sure we got a plant that can be implemented, that’s cost-effective, and be used for industrial re-use, restoring wetlands at Saltese Flats, if that’s what the best direction is, looking at what the non-river discharge options are. Make sure we’re best situated to do this.
TC: Last question, and this is just one man’s opinion, coming from somebody who got to sit in on at least part of this. One of the big failures that I see is just the lack of leadership among the people who had the most power to make decisions in this process. It just seemed to me that this is a very complex problem to solve. You could either kvetch about the unfairness of it or you could take a an aggressive and entrepreneurial look at the challenges and opportunities, including not just waste water treatment technologies, but waste water re-use opportunities. One is, do you agree? Has there been a failure of leadership here and, two, can this problem be solved in the next four years without strong, inspired, committed leadership coming from some quarter.
Rick: Yeah, I would agree there was a failure of leadership. The leader that stepped up the most was Todd Mielke. That was where we saw the strongest leadership. And obviously the county has an incentive, not necessarily to meet the water quality standard in Lake Spokane, but to build a plant. So, to his credit, you know, he was doing what the county was seeking to do. Where we were lacking leadership, is somebody from the state saying, ‘wait a minute, yes we have economic interests but we also need to make sure we’re meeting water quality standards and we need to deal with this on a bi-state level and have every player at the table. I don’t know if we’re going to overcome that. Let me say, the second major failure was not just the lack of leadership. Yes, we were in something called a collaboration, and this is an important point, that collaboration, by design, at the very first meeting, it was discussed, was going to be an agreement between Ecology and the dischargers. That’s not collaboration. If we want a collaboration, we have to have a true community collaboration, where the outcome is something that everybody–the Spokane Tribe, The Lands Council, Sierra Club–sign on to in addition to the regulated entities. And Avista. Obviously we need to have them on board too. If I could go back and I was in control, I think more important than necessarily having strong leadership is to have an honest collaboration that seeks consensus from everybody. You know, at the end of the day, if there had been a document that Sierra Club could sign on to, we’d be done. Now, that would require Sierra Club to make some compromises and the dischargers to make some compromises but if the goal is a collaborative document that everybody can sign on to, we’d have solved the problem.
–CFJ
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