The department has "clear legal duties under the Clean Water Act to prevent sediments and other pollutants from spewing into these streams, and they're not doing it," Eichstaedt says in a press release. "WDOT and its contractors should have been paying attention to prevent polluted stormwater from pouring into these waterways."
Spokane Riverkeeper files notice to sue Washington Department of Transportation over polluted stormwater flowing into local streams from highway construction.
On behalf of the Spokane Riverkeeper, the Gonzaga University Environmental Law Clinic has filed notice with the Washington Department of Transportation that it intends to file a Clean Water Act lawsuit to stop illegal stormwater discharges to two Spokane River tributaries. Specifically, the notice alleges WDOT has "failed to take adequate steps" to prevent pollution-laden stormwater (draining from land that has been disturbed for construction of the U.S. 395 North Spokane Corridor Project) from entering and visibly polluting Deadman Creek and the Little Spokane River. Deadman Creek is a tributary to the Little Spokane River in north Spokane, and the Little Spokane River is a tributary to the Spokane River.
"Just to be clear," said Eichstaedt, "this is not a suit to try to stop or otherwise impede construction of the new highway. The problem is that WDOT and its contractors have clear legal duties under the Clean Water Act to prevent sediments and other pollutants from spewing into these streams, and they're not doing it. Deadman Creek and the Little Spokane are not Third World drainage ditches. These are streams that contribute to the aesthetic and ecological values that recreational users and property owners in Spokane have every right to expect, by law."
Both Deadman Creek and the Little Spokane are currently listed (http://www.ecy.wa.gov/programs/wq/tmdl/littlespokane/wq_issues.html) as out of compliance with state water quality standards, including for turbity, which stormwater runoff can contribute to.
"The fact that both streams are subject to water quality restoration plans is all the more reason WDOT and its contractors should have been paying attention to prevent polluted stormwater from pouring into these waterways," Eichstaedt said. "Of course, any pollution dumped into Deadman Creek and the Little Spokane just heads downstream to the Spokane River, which is also subject to stringent water quality restoration plans. The Spokane River certainly does not need any more pollution."
Among other things, the notice letter alleges WSDOT and its contractors have violated the project's construction permit by failing to employ best management practices and install adequate control measures to mitigate stormwater pollution.
"BMP's [Best Management Practices] have not been put in place on downward slopes along the Road Project to provide proper sediment control," the notice states. "The slopes are either completely uncovered, or inadequately covered, and therefore during storm events water easily flows down the slopes carrying sediment and discharges into Deadman Creek and/or the Little Spokane River. Additionally, vegetation has been removed from the slopes without any alternative sediment control measures put in place." (Construction photos showing the disturbed and exposed soils can be viewed on the WSDOT website: http://www.wsdot.wa.gov/Projects/US395/NorthSpokaneCorridor/Photos.htm
The notice includes photographs of drainage piping apparently used to route stormwater directly into streams, and eye-witness accounts of stormwater events during which citizens reported that stream water turned "dark brown" or "bright green" as a result of pollution. One of the eye witness accounts comes from Spokane Riverkeeper member and former County Plan Commission chairwoman Lindell Haggin who contacted Eichstaedt after she observed dark brown water in Deadman Creek in early January. Haggin does volunteer water quality sampling for the Spokane County Conservation district on both Deadman Creek and the Little Spokane River.
"At least two areas of concern have been identified by Riverkeeper along the 10-mile road project," the notice reports. The first is at a newly constructed culvert where the project encounters Deadman Creek in the "US 2 Section." The second is at the "Wandermere Section" of the project where the Wandermere golf course abuts the Little Spokane River where the road project "features significant grading on a steep de-vegetated slope."
Both Eichstaedt and Mike Chappell, the law clinic’s director, say they're especially disappointed in the extent of the observed violations given how much public money is involved.
"This is a high profile project that has sufficient funding to ensure compliance with the Clean Water Act," says Chappell. "The project recently received a substantial amount [$35 million, http://www.wsdot.wa.gov/funding/stimulus/tiger.htm] of stimulus money from the federal government, so the Department of Transportation has no excuses for not complying with environmental laws and protecting our natural resources."
“Our hope is that this action will bring WSDOT to the table to develop a plan to quickly bring this project into compliance with the law,” says Eichstaedt. “We also want to send a message that compliance with stormwater permitting requirements is an important measure to protect our river.”
Eichstaedt and Chappell noted that the investigations leading to the notice letter are part of the Spokane Riverkeeper's emphasis on detecting and correcting industrial and construction stormwater pollution in the Spokane River basin.
"The Washington Department of Ecology has only issued four permits for industrial stormwater in Spokane County," Eichstaedt noted. "But we estimate they're at least dozens and possibly hundreds of sources that should be subject to permits." --CFJ