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Posts Tagged ‘Post Falls’

We got word over the weekend that the Spokane Riverkeeper is intervening in the pending TMDL lawsuit brought by Idaho polluter-plaintiffs Post Falls, Coeur d’Alene, and the Hayden Area Regional Sewer Board.  Recall that the Idaho dischargers filed a complaint in federal district court challenging the dissolved oxygen total maximum daily load (TMDL) issued for the Spokane River.

The litigation, which has cost North Idaho ratepayers and taxpayers more than $800,000 in legal and consulting fees, mostly asks that North Idaho dischargers be subject to the same standards as Washington’s.  This is arguably the case already. But regardless of the outcome, the Idaho plaintiffs will still need to install the very same pollution control equipment.  Notably, the Idaho dischargers are also participating in discussions of pollution trading — to be premised on the very TMDL they are challenging in Court.

We hear that settlement discussions are scheduled between EPA and the Idaho plaintiffs, and the many other lawyers which are necessarily now involved. The formal intervention will allow the Riverkeeper to participate in the settlement discussions that may – or may not – allow the Idaho dischargers to end their quixotic quest to modify the TMDL to their liking. Then, hopefully, we can get on with the cleanup of the river.

 

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Two interesting and somewhat interrelated items in today’s Coeur d’Alene Press:  first, that the City of Post Falls is reviewing their procedures for annexations into the City; second, that the City of Coeur d’Alene is reluctant to provide water service outside its municipal boundary in Huetter. The articles signal that both municipalities remain acutely concerned about expanding expensive city services at the periphery of their city limits.

The City of Post Falls is looking to revise annexation procedures so that developers aren’t given preliminary approvals that lead to an expectation of a final approval. Post Falls has adopted a flexible “Smart Code” zoning ordinance which modernizes its approach to development within the city limits, but requires that detailed planning work be done prior to final approval. However, the annexation process requires a preliminary approval from the City Council before developers do the more detailed project planning.  Preliminary approval for an annexation does not necessarily mean final approval for a development, but the current process allows for momentum to build, investments to be made, and expectations to develop.  As city administrator Erik Keck says in the article, the city’s priorities on growth can get lost in the current process: “We want to talk about how to make it a better process, so the council doesn’t feel it has a gun to its head that says, ‘You have to accept this,'” Keck said.

Meanwhile, the City of Coeur d’Alene’s Public Works committee declined a request by the tiny City of Huetter to consider extending water service. Huetter’s water service is below state DEQ standards and needs to be upgraded. As Jim Markely, head of Coeur d’Alene’s water department said, the system can handle the additional customers, but “The biggest point to make is that’s one of our growth tools, not extending outside city lines.” The City’s growth, in other words, should be determined by the City, not outside pressures.

All of this is occurring just as Kootenai County has released “Draft 4” of the Comprehensive Plan, which will be subject to yet another public hearing October 26th.  As seen from today’s articles, the municipalities would clearly prefer less uncontrollable pressure on their borders so that they can expand in a more orderly, affordable and planned way. As we’ve been saying all along, this can be accomplished by a strong County comp plan, which keeps rural areas rural. The County Commissioners will have another (final?) chance to fix what they broke. We hope they restore clear numeric density ranges to the comp plan — to protect rural areas and direct development into the city limits, rather than allowing development to sprawl outward.

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Admittedly, it is difficult trying to explain to laypersons why the Spokane River TMDL is reasonably fair even though it seems a little tilted toward Washington’s polluters. But then we read an outstanding overview of the issues on the Spokane River Forum’s very informative website. With an issue-by-issue summary, in a point/counterpoint format, the Forum describes the issues raised by the Idaho polluters in their lawsuit, and what each side says about them. The whole article is well worth reading, even if still a bit technical. But on the fairness issue, it’s worth highlighting the discussion on a couple of points we hear raised over and over again:

Point: Idaho dischargers are being asked to remove more phosphorus from their water treatment plants effluent (what is discharged into the river) than Washington dischargers.

Counterpoint: Except for Kaiser (which has a lower limit), all dischargers have the same phosphorus limits based on a monthly average of 50 ug/L. What looks like Idaho being given a higher standard is based on using a seasonal vs. monthly statistical average. Idaho dischargers requested a seasonal average, thus lowering the limit to 36 ug/L. Sampling frequency and fluctuation in effluent quality causes the required seasonal average to be lower than the monthly average. EPA has stated that Idaho dischargers can return to using a monthly average.

Point: Population growth projections by 2027 factor into determining phosphorus reduction requirements. Figures used for Idaho underestimate growth, further exacerbating requirements that Idaho discharges consider too stringent.

Counterpoint: Idaho utilities supplied the figures used. A late request from Post Falls and Hayden to change their figures was refused. The figures were refused because they use growth projections well above the historic norm and are not consistent with projections used in Kootenai County’s comprehensive plan. If the projections are incorrect, they can be adjusted in the mandated 10 year assessment.

We’ll say it again. This just doesn’t seem worth litigating.

UPDATE 8/5: The Coeur d’Alene Press reports that the municipalities have spent a stunning $800,000 fighting the TMDL so far. And they’ve just gone to Court.

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 The City of Post Falls and the Hayden Area Sewer Board followed through on their promise to file a lawsuit in federal court challenging the legitimacy of the 12-year effort to establish a cleanup plan for the Spokane River. The City of Coeur d’Alene just decided it will be joining in as well.

 The Idaho polluters’ lawsuit is drawing high-powered opposition. The U.S. EPA and Washington’s Department of Ecology will certainly defend the cleanup plan, but  Spokane County has also lawyered up and can be expected to vigorously defend their interests. Other big guns like Avista and Inland Paper are likely to send lawyers as well.

 In a previously-scheduled, get-to-know-you meeting with environmental groups in Spokane yesterday, relatively new Washington Department of Ecology Director Ted Sturdevant and regional Ecology director Grant Pfeiffer reiterated their support for the TMDL plan, and said that they would be defending it in court. Pfeiffer indicated that after 12 years of study and negotiation, the foundation for the TMDL has largely solidified, and that he was confident that it would hold up under legal scrutiny.

 KEA has obtained a copy of the 53-page Post Falls complaint and we are currently reviewing our own legal options. But the Idaho dischargers have picked a legal battle that will be very expensive to fight and very difficult to win. And, as we’ve said before, no matter the outcome of this legal tussle, the Idaho polluters have very expensive upgrades to make to their pollution control equipment. Our prediction is that, win or lose, all the spending on lawyers now will not make a dime’s difference later.

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Spokane River through downtown Post Falls

 At last night’s City Council meeting, and without any public debate whatsoever, the Post Falls City Council voted unanimously to file a lawsuit over the Spokane River cleanup plan. The long-awaited and controversial TMDL (total maximum daily load) setting a pollution budget for phosphorous was set by the Washington Department of Ecology some months ago, and pollution permits for Idaho dischargers into the Spokane River were expected to be issued by EPA later this summer.

 What happens ultimately is anyone’s guess, but with Post Falls heading to the courtroom, what likely happens next is that everyone else will head to the courtroom too.

 A fundamental characteristic of a TMDL is that there is a sort of zero-sum nature to it. If more pollution is allowed from one pollution source, then the other sources of pollution will need to be reduced accordingly. With Post Falls heading off to court, each of the parties will need to go to court too, to protect their own interests. A judge will now need to sort out the highly technical arguments of not only Post Falls, but municipal dischargers in Spokane and Coeur d’Alene, industrial dischargers in Spokane, environmental groups, and regulators.

 Even if the lawsuit is successful, what will Post Falls win? The very most a judge will be able to do is simply send the TMDL back to the Washington Department of Ecology – the agency that wrote it – to be re-worked. After some 12 years of this work, the likelihood that there will be any major changes ranges from slim to none. Indeed, there is no circumstance whatsoever in which any of the Spokane River dischargers will be relieved of expensive upgrades to their pollution controls.

 At this point, money spent on lawyers is money down the drain. Money spent on wastewater engineers will at least give some return on investment. Meanwhile, until this all gets sorted out and the cleanup gets underway, toxic algae and oxygen depletion will continue to choke the river.

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As expected, the EPA approved the Washington Department of Ecology’s formulation of a TMDL pollution budget for the Spokane River’s phosphorous-caused dissolved oxygen problems. The reactions from polluters, politicians, and conservationists on both sides of the state line:

EPA endorses the Ecology plan — Spokesman Review

Idaho Senators Crapo and Risch don’t like it — Huckleberries Online

The CDA Press doesn’t like it either — CDA Press

The actual EPA letter approving the plan — US EPA

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After 12 long years of talking about it, the Clean Water Act might start having an impact on Spokane River water quality soon. Well, within the next decade or two. The Washington Department of Ecology has finally moved forward on a basic legal requirement to budget pollution loads in the Spokane River.  All this time, nutrient pollution has continued to choke the oxygen out of the Spokane River in Long Lake, and has fed nasty toxic algae blooms in the summers.

The Washington Department of Ecology, the agency responsible for establishing a TMDL (total maximum daily load) under the Clean Water Act, issued a final version in February, calling for a 90% reduction of phosphorous into the river by the year 2020.  The tough TMDL, will require advanced wastewater treatment by all pollution dischargers, but will also require more water conservation measures, and difficult non-point source pollution reductions. There’s a 10-year compliance schedule for polluters, but in some cases it may extend for 20 years.

Idaho dischargers, on the one hand, and the Sierra Club on the other, filed formal protests with the Department. In an internal administrative dispute resolution process which was resolved last week, the Department of Ecology decided to stand by its previous decision.  EPA is expected to issue a final approval soon.

In a recent opinion piece in the Spokesman Review, the Idaho dischargers remain upset about the decision, pointing out some distinct unfairness in the way dischargers are being treated by the TMDL on either side of the border. The Sierra Club also remains disturbed by the decision.

In truth, we are quite sympathetic with both sides.

In a simplified analysis, it is a little unfair.  Idaho’s sewage treatment phosphorous effluent standards under the TMDL are 36 ppb (parts per billion).  Washington’s are allowed at 42 ppb. Also, the TMDL may or may not allow “trading” of pollutants on the Washington side to provide more breathing room in water pollution permits for Spokane dischargers.  We’re not sure that such trading will be appropriate or even possible. Idaho, meanwhile, has no such opportunity because it has no regulatory authority to even attempt it.

Meanwhile, Spokane County has plans for a brand new water treatment plant, which will request to be permitted under the TMDL for future discharge into the already polluted River.  We’re completely unconvinced that the proposed phosphorus budgeting on the Washington side of the border adds up, so we remain skeptical that Spokane County’s sewage plant can ever be legally permitted. 

But some of Idaho’s problems are somewhat of Idaho’s own making.  For years, Idaho has consciously chosen to be one of the few states to abdicate all responsibility for water quality permitting issues to the federal EPA.  And the Idaho state legislature has proven it is entirely unwilling to properly regulate septic systems, which are a major threat to water quality in North Idaho.  With such little leverage for negotiation, Boise is as much of a problem for the Idaho dischargers as Spokane.

Still, regardless of the real or perceived unfairness, there are some basic truths about the Spokane River cleanup that will remain.  Whether Idaho is allocated 36 ppb under the current TMDL or 42 ppb as is allocated to Spokane, expensive upgrades to Idaho sewage treatment plants will be needed. New technology will be necessary to meet the tough new standards either way, and sewer rates will go up.  

We are impressed with, and actually quite proud of our friends and colleagues at the City of Post Falls, the City of Coeur d’Alene, and the Hayden Area Regional Sewer Board for their commitment to clean water and their technical understanding of the difficult issues involved.  We are confident that they will have the skill and technological wherewithal to meet the tough standards, and we will support their efforts to raise awareness, and funds, needed to do so.

Now, though, can we all just get on with it?

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